Imitability and the power of IP

‘Imitability’. A noun. ‘The quality or state of being imitable’. Great word, but not a favourable characteristic for any enterprise. The current pandemic crisis has brought into sharp focus the longevity of many businesses. Longevity is under attack. Whether by new regulations, forcing businesses to shut down, or the emergence of new competitors threatening to dilute market share. Now, more than ever, Intellectual Property is your business’ most valuable asset. As discussed below, Intellectual Property Assets provide barriers to competition but importantly, also enable adaptation into new markets and new revenue streams.

Every business should now be critically examining their intellectual property assets.

Companies that have devoted suitable resources and priority to the protection and maintenance of their IP rights will be favourably positioned in the present circumstances, particularly if they know how to leverage their IP. 

This is because IP rights directly contribute to the following outcomes:

A lawful barrier to competition.

The beauty of IP assets really lies in the exclusive rights conferred upon their owner. With a strong portfolio of IP assets (e.g. registered trade marks, patents, designs, copyrights and know-how), businesses enjoy monopoly style rights enabling them to stop imitators and preserve the longevity of their business.

To put it another way, strong IP rights have a direct bearing on whether or not your business, your goods, your services are imitable. The stronger the IP rights, and the more strategically they are managed, the greater the potential for your business to be ‘inimitable’.  Why? Because, imitation will involve the risk and substantial cost of infringing your IP rights.

In the present circumstances where everyone is looking for new opportunities, the ability to build an IP fortress around your business assumes heightened importance.  Not only to stop existing competitors but also to prevent new and emerging threats (e.g. those businesses who are under strain in otherwise different markets but perhaps looking to pivot into your territory).  

Leveraging existing IP in new ways.

Now, this is where a discussion about IP rights can become very compelling. Those companies with valuable portfolios of IP rights possess the potential to tap into entirely new markets and revenue streams simply by reimagining their IP or perhaps leveraging the value of their brand (e.g. values of trust and quality) into new markets.  Think, for example, of the ways in which Nike (originally a running shoe company) has leveraged the value of their brand to dominate the global sporting landscape. Consumers trust the brand. Will your brand enable you to extend into new categories of goods and services?

A compelling illustration of a firm’s ability to adapt and re-imagine its existing IP involves engineering firm, Dyson. Renowned for its vacuum cleaners, hairdryers etc, Dyson has reportedly leveraged its patents, know-how and trade marks to develop a ventilator within 10 days. Reports of an initial commercial order of Dyson’s CoVent ventilators illustrates, quite powerfully, the value of IP. But it’s not just the company’s patents, designs and know-how which are in-play. Think also of the enhanced brand (trade mark) reputation to flow from the reported donation of 5,000 units of CoVent machines to the UK hospital system. 

Of course, we’re not all in the position of a successful manufacturer sitting on a treasure trove of patents. However, every business has a product or a service for which they are renowned and appreciated by their customers. Or, perhaps your business’  success is underpinned by the investment made in its administrative or back-end functions. Either way, IP is everywhere within all of our businesses: often in unexpected places.  

Now’s the time for left-field thinking and exploring ways to monetise your IP. For example, consider licensing your brand, your know-how, your recipes, your systems etc to other businesses and create new IP licensing / IP commercialisation revenue streams.

So what to do now?

All businesses, big and small, will be well-advised to review their existing IP assets to ensure they understand their own unique IP landscape and to consider the potential for strategic redeployment of these assets. Here are some questions and actions for your immediate consideration:

  • What IP assets have we invested in and created over the journey? Undertake an audit and catalogue all of your IP assets so that you understand ‘what you’re sitting on’.
  • Which of these IP assets are actively engaged and which are dormant?
  • Is there latent value in those dormant IP assets?
  • Could other companies extract the value of those dormant assets? If so, commercialisation options should be considered.
  • Do we own all of the IP rights identified from our review and which we have developed over time?
  • To the extent that there are gaps in ownership or licence rights, now’s the time to tidy them up. You’ll be rewarded in spades. 
  • Review your key brands and ensure they are registered – including in respect of any new business activities that you are considering pivoting towards.
  • Make sure your Board and the Executive Team understand the basics of IP and that IP is a factor that is considered in all of your commercial discussions going forward. 

The market has forced change upon us all. We all need to be thinking of the IP we have in our business and how these assets can be leveraged for success. You might just be able to build an IP fortress and/or reimagine your IP to see you through the current crisis and beyond.  Good Luck!


At Buchanan Law Firm, IP is what we do. We are an independent team of specialist IP lawyers and Registered Australian and New Zealand Trade Mark Attorneys. We see our role, particularly in the present circumstances, to help ensure our clients understand the IP landscape and to empower them to leverage their IP rights to build strong and sustainable businesses.