IP, or not IP? (That is the question).
As an intangible asset, IP can be hard to get your head around.
Intellectual Property (or IP) rights include:
Patents, Trade Marks, Designs, Copyright, Confidential Information, Trade Secrets, Database Rights, Passing Off and Moral Rights.
Often more than one type of IP applies to the same creation.
This section aims to provide you with a brief explanation of each term.
If you would like to read further into each of the individual sections then please look at the relevant practice area.
Novel inventions which involve an inventive step can be protected by a patent. These last for up to 20 years (subject to annual renewal), throughout the UK.
Patent protection gives the inventor the right to prevent others from: making, using, importing or selling an invention without permission.
Strict rules apply to what can (and can’t) be patented. For instance, you must not publicly reveal your invention before you apply for your patent.
Trade marks protect brand identity. They include: words, logos, shapes, sounds and other signs. Trade marks can be registered or unregistered.
It is easier to enforce IP rights when others use your mark if the trade mark is registered. An unregistered mark will rely on the common law of passing off.
To obtain a registration, the trade mark must be distinctive for the goods and services you provide. It cannot be deceptive or contrary to law or morality. A trade mark can be registered in different classes of goods or services. A registered trade mark must be reviewed every 10 years and can last indefinitely. Consideration should also be given as to whether international or European protection is needed. A Community trade mark gives IP protection in all European Union countries. If it is important to have International protection, you can apply for protection in countries party to the Madrid Protocol.
Registered Design Right
In order to protect how a product looks (as opposed to how it works) it is necessary to register the design. A registered design will protect the: lines, contours, colours, shape, texture and materials of the product or its ornamentation.
In order to be validly registered, the design must be new and have individual character (so that it would not remind an informed person of an existing design).
A registered design has protection throughout the UK for 5 years. It can then be renewed every 5 years for up to 25 years. In order to protect the design in other countries, there are two options.
Firstly, you can apply for a Registered Community Design with the Office for Harmonisation in the Internal Market (OHIM). Once registered the design then has protection in all countries of the EU.
Secondly, you can apply for registration of the design in the individual countries in which you want protection.
Unregistered Design Right
An unregistered design right protects any aspect of the shape or configuration of a purely functional 3D product (whether internal or external). The protection lasts for either 10 or 15 years, depending on when the product is first made available for sale or hire.
The advantage of an unregistered design right over a registered design right is that it is free and is created automatically when you create an original design. However, the 2-dimensional aspects (for example patterns) of the design are not protected and these would need to be registered.
A design right will only give you IP protection in the UK. There is, however, a Community unregistered design right. This (like UK and Community registered design right) protects new designs with individual character. In the EU protection lasts for 3 years from disclosure of a product incorporating the design to the public.
Copyright is a property right which subsists in original: literary, dramatic, musical and artistic works, published editions of works, sound recordings (including CDs), films (including videos and DVDs) and broadcasts.
Copyright protection is available throughout the UK and much of the world. In the UK, copyright is created automatically and no registration is required in order to obtain copyright protection.
Copyright for literary, dramatic, musical or artistic works lasts 70 years. Copyright protection for sound recordings lasts 50 years. Copyright for typographical arrangement lasts for 25 years.
Please note that this guidance does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.
For more information, or to speak to our IP experts call:
01132 379 900