This article was published in December 2016’s edition of Prime Resi.
Whilst developers, owners and investors keep close tabs on the value of their property portfolios, most neglect to consider the intangible assets that exist within their bricks and mortar. IP rights can come in many forms, including building design, names, nicknames and addresses, all of which need careful safeguarding in this day and age. Eddie Powell and Oliver Tobin give us some tips on trademarks, copyright and transactions, and explain why it’s always worth protecting the brains behind your bricks…
The twenty-first century has seen a growing enthusiasm for eye catching construction projects, contemporary residential developments and distinctive building designs. A short stroll around London showcases walkie talkie, cheese grater and gherkin styled architecture. This trend, however, has not been limited to the commercial sphere. Innovative design concepts now feature heavily in residential property developments such as the eagerly anticipated Nine Elms project, the renovation of Oxo Tower Wharf and the luxury apartments located within the Shard. Whilst property developers, owners and investors keep close tabs on the value of their property portfolios, most neglect to consider the intangible assets that exist within their bricks and mortar.
Intellectual property in real estate can exist in a number of forms. Distinctive building design features, names, nicknames and addresses can all harbour intellectual property rights. For a third party, association with a luxury development through its unique design features or name can be highly desirable. Such association can have damaging consequences for an owner; therefore, all property owners ought to consider protecting their intellectual property. Furthermore, the exploitation of intellectual property can be a tool to harvest revenue, a common example being the collection of licence fees – think about the merchandise for sale in the gift shop at the Shard… Safeguarded intellectual property rights may also increase a property’s value and the scope for generating resale revenue as a result.
Trade mark protection can be obtained for a name, symbol, sign, figure, word or mark used to distinguish goods or services. Building names or nicknames can be trade marked; however, great care must be taken not to infringe existing third party intellectual property rights.
Problems can also arise at the registration stage if a name lacks distinctiveness, as illustrated by the Canary Wharf application. The Canary Wharf Estate’s application for a trade mark of ‘CANARY WHARF’ was rejected as the name was a geographical area and insufficiently distinctive. Developers should seek trade mark protection as early as possible for signs used in new developments as, over time, signs can become synonymous with the surrounding geographical area and distinctiveness can be undermined. This should be a key consideration for residential developers looking to build in new or previously undeveloped areas.
Copyright is a form of intellectual property that grants rights to the creator of a work. A building design may attract copyright protection. In most cases, copyright will belong to the architect or building designer and most architects only grant a licence to build and maintain. Property owners and developers should think about alternative intellectual property structures as revenue sharing structures.
When investing in real estate, buyers should be mindful of subsisting intellectual property rights (such as a building name) and include their transfer within the scope of the transaction. Where a seller is reluctant to part with its intellectual property rights, purchasers should consider whether the absence of rights will lower the value of the premises. This is particularly important for residential property owners looking to achieve an optimal resale value.
Whether planning an adventurous new building project or adding to a property portfolio, owners, developers and investors should all consider intellectual property and its implications from the outset. In a world that is ever modernising, the peace of mind that intellectual property protection offers, combined with the potential to boost property value, makes protecting the brains behind your bricks… well… a no-brainer!
 Canary Wharf Group Limited v Comptroller General of Patents, Designs and Trade Marks  EWHC 1588 (Ch)
Eddie Powell, Partner, Fladgate LLP (email@example.com)
Oliver Tobin, Trainee Solicitor, Fladgate LLP (firstname.lastname@example.org)