Intellectual Property Should Follow the Business, Not the Filing Checklist

When a business relocates or expands internationally, the immediate priorities are usually familiar: register the company, obtain permits, arrange banking, establish operations. For immigration and corporate advisers co-ordinating the move, those tasks are central to the assignment. But one question can fall between them: is the client's intellectual property protected in the countries where the business will actually operate? In my experience, treating that question as something to deal with later can be expensive.

Consider a company that used a warehouse in Germany only as a logistics hub. Its products were sold elsewhere, and it had registered trade marks in Portugal, Spain and Italy. Then visitors to the warehouse noticed the branded boxes and passed photographs to a company that held a similar mark in Germany. The dispute escalated, the stock was seized, and the business had to negotiate its release and the terms of future activity.

The matter was resolved, but the client spent approximately €5,000 on legal assistance alone.

The company was not selling in Germany. That was precisely why it had overlooked the country when planning its protection. Yet manufacturing, storing and moving goods can also create intellectual property risks. To understand those risks, I start not with a filing form but with the business itself.

Four questions before any filing

I have worked in intellectual property protection for more than 20 years. Whether a client comes to me with an established brand, a new product or a business relocation plan, my initial assessment starts with four questions.

What exactly does the business sell, and under which names? I look at the goods or services, the brands used to market them and whatever materials are available: websites, social media, brand guidelines and product presentations. Before discussing a trade mark, I need to understand what it represents.

In which countries does the business actually operate? That includes more than the place where the company is incorporated or customers place orders. Imagine a product manufactured in China, administered from Germany, stored in Türkiye and sold in the United States. Each link in that chain deserves attention when assessing exposure and deciding where protection may be needed.

Who should own the rights, and why? In a relocation involving partners, one may remain in Ukraine while another develops the business in Spain. Before both start operating under the same brand, I want to establish who owns the rights, how each party may use them and whether licensing or assignment agreements are needed.

Can I see the actual product? Photographs, mock-ups, packaging, drawings, software materials or instructions can reveal things that a verbal description will not. A client may ask for a trade mark, but the product may also raise questions about design protection, copyright or a technical solution.

In my experience, these four questions identify roughly 70–80% of the issues that need to be mapped at the outset. Only then do we move into licensing, royalties, franchising, commercialisation and plans for the next two or three years.

A trade mark in one country does not cover the whole business

At an earlier Circle meeting, I asked participants to share their websites so we could examine their actual services. One business had registered its mark in the country where it maintained an office, but its website showed activity in several other markets. The registration existed; the broader territorial strategy did not.

I encounter the same problem with manufacturers. A factory may register its brand where production takes place and assume that dealers will handle everything abroad. Later, the manufacturer discovers that a distributor registered the mark in its own name. If the company changes distributors or wants to enter that market directly, it may find that the brand it created is already controlled locally by someone else.

The opposite approach, filing everywhere, is rarely a sensible starting point either. A business may provide online services across dozens of countries, but that does not mean it can justify immediate registrations in all of them. I ask clients to examine where they actually earn revenue and in what proportions. If seven out of thirty markets account for 80–90% of turnover, that is a practical basis for setting priorities, while keeping the other markets under review.

The priority is to match the territorial scope of protection to the markets where the business is commercially active, rather than simply to the location of its head office.

Production and storage are not invisible to trade mark law

A client once had goods manufactured in China for export, without selling them on the Chinese market. A container was stopped because a very similar trade mark, covering the relevant goods, had been entered in the local customs register. The client challenged the situation but ultimately could not recover the shipment.

This is why I ask about the entire supply chain. A jurisdiction may matter because goods are produced there or pass through it, even when no local consumer ever buys them. The precise legal assessment depends on the jurisdiction and the facts, but the business cannot assume that the absence of local sales means the absence of IP exposure.

Protect the product before launch, not after dispatch

The same timing issue arises with new products. Imagine launching a wine brand. Before ordering labels, bottles and packaging at scale, I would want to check the proposed name in the relevant markets and examine the product's presentation. If the bottle or another visible feature has an original design, industrial design protection may also be worth considering.

Too often, the enquiry comes when the lorry has already left or a container is due to arrive in two weeks. By then, a trade mark search may uncover a conflict after the business has committed to its chosen brand. I encountered a similar problem in Uzbekistan.

A business preparing to sell a supplement there had obtained approvals, organised production and prepared its packaging before asking us about the trade mark. A search revealed earlier similar names, and we could not find a workable route around the conflict for the chosen brand. The problem was no longer simply how to register a mark; it affected a product launch that was already under way.

The most expensive protection is not always the right protection

Some founders arrive wanting patents in many countries before they have validated their business model or secured funding. Depending on the complexity of the invention and the number of jurisdictions involved, a European patent strategy may require an investment of many thousands of euros, with additional costs for prosecution, validation and maintenance. For an early-stage start-up, committing to extensive international patent protection before securing funding or validating the commercial potential of an invention may be financially premature.

Sometimes an initial application in one jurisdiction can be a more proportionate first step, with a 12-month priority window for relevant subsequent patent filings, subject to the applicable rules. That may give a start-up time to seek investment before deciding where to pursue further protection. It is not a solution for every project, and the deadlines matter.

I remember a team developing drones. They initially wanted protection for an invention. After examining the product, I did not see a strong enough technical basis for the patent strategy they had in mind, but the external design was distinctive. We chose industrial design protection instead. It was a simpler, less expensive route and, according to the clients, has remained sufficient for their needs.

Other assets may also deserve attention. Copyright protection for original drawings or manuals can have value, including when presenting a project to potential partners or investors. But it does not protect the technical idea in the same way as a patent. I would rather make that limitation clear than give a founder false confidence.

The same principle applies to trade mark classes. Clients sometimes arrive with lists of ten or twenty classes generated by AI. When we examine the actual goods and services, many classes turn out to be unnecessary, while a crucial one may be missing. A precise application is often more useful than a long one.

Why immigration advisers should raise IP at the beginning

Intellectual property can also intersect directly with immigration programmes for entrepreneurs or innovators. In a historical case involving the United Kingdom, the requirements as presented to us changed from accepting certain applications filed abroad to expecting a filing in the UK. A relatively inexpensive application in Ukraine could cost around €200–300, whereas the British filing involved a substantially higher budget. That changed the economic calculation for the client.

In another immigration-related case, the client was advised that the relevant programme required evidence of a granted patent rather than merely a pending patent application. This distinction had a major impact on the project. While filing a patent application may take weeks, obtaining a granted patent can take several years and is never guaranteed. The difference between these two requirements can determine whether an immigration strategy is realistic within the client's intended timeframe. For that client, the timeline made the proposed immigration route impractical.

These historical cases are not a guide to current immigration eligibility rules. They illustrate why I rely on a clear division of responsibility. Immigration advisers establish the programme's requirements and deadlines; I then assess which IP options are legally available, commercially appropriate and achievable within those deadlines.

At what stage should an immigration or corporate adviser raise intellectual property with a business client? At the beginning, alongside company formation, permits and market-entry planning. I would make one question part of that first discussion: "Are the business's brands and other intellectual property rights protected in the countries where it plans to operate?" That assessment should also consider where products are manufactured, stored and distributed, and where services are provided — not only where the business is incorporated or headquartered.

If a client has no clear answer, or refers only to protection in its home country, that is the moment to involve an IP specialist. Immigration and corporate advisers do not need to make intellectual property filing decisions themselves. Their value lies in identifying the risks early enough for the business to act, before decisions about names, ownership structures, supply chains and market entry become costly to change.