Intellectual Property Basics

INTELLECTUAL PROPERTY BASICS

Intellectual Property (IP) is the umbrella term used to describe a range of legal rights that attach to certain kinds of information, know how and ideas, and in particular, to the way that they are expressed and used. IP is increasingly recognised as being of critical importance to the success of a business and all clients need to be aware of the different types of IP rights in order to ensure that they (i) protect what they create; (ii) hold what they need in order to maximise their competitive position; and (iii) take care to avoid infringing third party rights. This guide has been put together as a simple reference tool to help you identify the intellectual property within your business and assess whether or not it is adequately protected.

Contents:
Part 1: What is intellectual property?
Part 2: Copyright
Part 3: Design rights
Part 4: Patents
Part 5: Trademarks
Part 6: Registered Designs
Part 7: Disputes about intellectual property

Part 1: What is intellectual property?

Intellectual property is something you create that’s unique.

It includes copyright, patents and trademarks, and can be:
• something you invent, like a new product
• a product’s design or appearance
• a brand or logo
• written work, like content on a website or in a brochure
• artistic work, like photography or illustrations
• film recordings or musical compositions
• computer software

You can’t protect an idea – but you can often protect what you do with it. For example, you can’t protect an idea for a book. But if you write it, you can protect the words you’ve written.

WHO OWNS INTELLECTUAL PROPERTY?

If you create something, you or your business usually own the intellectual property.

If someone you employ or subcontract creates something for you, their contract with you should clarify who owns the intellectual property.

PROTECTING YOUR INTELLECTUAL PROPERTY RIGHTS

Protecting your intellectual property allows you to:
• stop others using what you’ve created without your permission
• charge others for the right to use what you’ve created
• Getting the right type of protection

The type of protection you need depends on what you’ve created. For example, artistic works are protected by copyright, while inventions are protected by patents.

You can use more than one type of protection for the same product. For example, you can patent your product and register its name as a trademark.

Part 2: Copyright

Copyright protects original:

• literary and written work, like published novels or content on websites
• dramatic, musical and artistic works and their performances
• television, film, sound and music recordings
• computer software
• illustration and photography
  You automatically get copyright protection when you create something original – you don’t need to register.

But before making your work public, you should mark it with:

• the copyright symbol (©)
• the copyright holder’s name
• the year the work was created
  This gives you more protection, as it shows others that it’s covered by copyright and who owns it.

WHEN IS YOUR WORK PROTECTED BY COPYRIGHT?

To be protected by copyright, your work must:

• be original (you’ll need to be able to prove that you’ve made a significant creative contribution to it)
• physically exist (it can’t be just an idea)

Copyright in the UK lasts for the rest of the creator’s life plus 70 years.

COPYRIGHT OVERSEAS

UK copyright is automatically valid in countries that have signed the Berne Convention. How long copyright lasts in these countries varies, but it’s usually a minimum of 50 years (25 years for photographs).

Part 3: Design rights

A design right automatically protects the physical shape of something original that you design. For example, if you design a vase with a unique shape, the design is automatically protected in the UK by design right. Your design must be unique – the law says it can’t be ‘commonplace, everyday or ordinary’. Design rights don’t cover any two-dimensional elements of a design, e.g. a pattern on a product’s surface.

HOW LONG DOES DESIGN RIGHT PROTECTION LAST?

Design right protects your design in the UK until the earlier of:

• 15 years after the design was first created
• 10 years after the design was first marketed and sold

AUTOMATIC PROTECTION FOR DESIGNS IN THE EU

A unique design you create in the UK will automatically become an ‘unregistered community design’. Unregistered community designs are protected across the EU for up to 3 years after you make the design public. Unregistered community design also protects two-dimensional elements to a design, like a decorative pattern on an object.

GETTING STRONGER PROTECTION FOR YOUR DESIGNS

If someone uses your design without permission, defending design right and unregistered community design can be difficult. You need to prove:

• your work is original
• you created it first
• any copying was deliberate
  If you can prove all these things, you can try to stop or reach an agreement with whoever’s using your design without permission.

You can get stronger protection for your design by registering it.

Part 4: Patents

You can protect something you’ve invented by patenting it. A patent registers your invention and stops anyone making, using or selling it without your permission.

WHAT YOU CAN AND CAN’T PATENT

Your invention has to be:

• new
• genuinely inventive (not just an obvious modification to something that already exists)
• something that can be physically made or used

Things you can’t patent include:

• literary, dramatic, musical or artistic works
• schemes, rules or methods (including medical treatment methods)
• anything that’s solely an idea (eg a way of thinking, a scientific or mathematical discovery)
• new types of plants, seeds or animals

REGISTERING A PATENT IN THE UK

Patent registrations can be complicated and are often handled by patent attorneys. It can take more than 4 years for a patent to be granted. Once your patent application is submitted, the Intellectual Property Office (IPO) will check the application and do its own search to make sure your invention doesn’t already exist. They will also publish your application to give other people the chance to object. Once this process if completed, your application is granted or refused. After your patent has been granted, you can licence it to other people or defend it against infringements.

HOW LONG DOES A PATENT LAST?

A patent can last for 20 years from the date you apply for it. After you’ve held a patent for 4 years, you must renew it every year if you want to keep it.

GETTING PATENTS OVERSEAS

A patent only protects your invention in the country where the patent is registered but you can apply for patents in the EU or other countries around the world.

Part 5: Trademarks

A trademark is a something that makes your brand recognisable, like a logo or a sound.

Registering a trademark lets you stop other people from using it without your permission.

To register a trademark, it must be clearly different from any trademarks already registered for the same type of products or services.

A trademark registration lasts 10 years and is only valid in the country of registration. You can renew it every 10 years.

COMPANY AND DOMAIN NAMES

Company names and domain names aren’t automatically trademarks. You register:

• company names with Companies House
• domain names with domain name registrars
  Once you’ve done that, you may be able to register company or domain names as trademarks.

REGISTERING A TRADEMARK IN THE UK

You will need to check that your brand qualifies as a trademark – you can’t change it after it’s registered and find out if an identical or similar trademark already exists.
The IPO will check you application and will make it public to give other people the chance to oppose it. The IPO will then either grant or refuse your trademark application. After your trademark is granted it will be published in the IPO database and you’ll get a certificate. We can help with searches and registrations and with your application to the IPO.

The IPO doesn’t police trademark infringement. If someone is using your trademark without permission, you’ll need to get them to stop and we can advise you further on how best to approach and deal with this situation.

REGISTERING TRADEMARKS OVERSEAS

There are different rules for EU and international trademarks

Part 6: Registered designs

Registering your design can give you more protection than design right.

REGISTERING A DESIGN:

• protects all aspects of your design (for example, both your product’s distinctive shape and its decoration)
• gives you exclusive rights to use it for up to 25 years

You can register the physical shape, configuration or decoration of a product you’ve designed.

WHEN CAN YOU REGISTER A DESIGN?

To register your design, it must:

• be new
• not be offensive
• not make use of protected emblems or national flags (for example, the Olympic rings or the Union Flag)
• not be an invention or how a product works – you need a patent for this

REGISTERING A DESIGN IN THE UK

You will need to check the Intellectual Property Office (IPO) database of UK-registered designs to see if your design is unique. If the design is unique, you can apply to the IPO to register your design. The IPO will examine your application within a month and if there are no objections, your design will be registered within 3 months. For further advice on this process please contact us.

REGISTERING A DESIGN IN THE EU

To register a design across the EU, you can apply to the Office for Harmonisation of the Internal Market. A design registered across the EU is called a registered community design.

REGISTERING A DESIGN OUTSIDE THE EU

You can register designs outside the EU. If the country you want to register the design in has signed the Hague Agreement you can either:

• apply for registration in that country only
• make one application for all countries who have signed the agreement
  You must apply through the World Intellectual Property Organisation. If the country hasn’t signed the Hague Agreement, apply to the government department responsible for intellectual property in that country.

Part 7: Disputes about intellectual property

If you think someone’s used your intellectual property without permission (sometimes known as ‘infringing your intellectual property rights’), you should either:

• stop them
• make a commercial agreement so they can use it

You can write to them requesting that they stop using it and we can provide specialist advice on how to draft such a request. If your letter doesn’t work, mediation or arbitration could be the next step you consider. You may be able to reach an agreement, or a licensing deal. If you can’t reach agreement you can take legal action on which we can advise you further.

Having read this guide you may wish to undertake an Intellectual Property Audit. Click here to find out more about what this involves.

Disclaimer: The contents of this publication, current at the date of publication (15/01/13), are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
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_Credit: This information is provided by GOV.UK and is being made available by Moore Law via the Open Government Licence