Intellectual Property Rights overview
Your intellectual property rights are one of your most valuable business assets. If you fail to protect your intellectual property rights, you may be failing to protect your business. A failure to protect your own rights will lead to other taking advantage of your competitive edge.
If others are trying to copy anything that you have protected or are trying to use these rights without your permissions, it is called infringement. Infringement such as counterfeit goods can ruin a company’s goodwill in the marketplace.
As well as protecting your own intellectual property rights, you should ensure that you do not infringe anybody else’s rights.
Like any form of property it is possible to buy, sell and licence intellectual property rights.
Patents
If your company develop an inventive product or process which is innovative for your industry it will be possible to apply for a patent. A patent will protect your product or process and forbid anyone, apart from your company using or selling it without your permission. A patent will ensure that you will have the exclusive right to sell or use the product or process within the jurisdiction that the patent was invented.
Patents are granted for the territory in which they are applied within, therefore if you apply within the UK you will be granted exclusive use within the UK. It is possible however to apply for protection within the whole of the EU by virtue of the European Patent Convention or the Patent Co-operation Treaty.
Before you apply for your patent it is very important that you don’t publicly reveal your product or process.
There are certain restrictions in place for what is not able to be patented, these include:
- Method of medical treatment or diagnosis;
- A way of performing a mental act, playing a game or doing business;
- A literary, dramatic, musical or artistic work;
- A scientific or mathematical discover, theory or method;
- A presentation of information, or some computer programs;
- Anything immoral or contrary to public policy.
A patent can be owned by the inventor, the inventor’s employer or anyone else who has bought or licensed the rights to the product or process.
A patent can last for up to 20 years but it does need to be renewed every year, a renewal fee will be due.
Trade Marks
A trade mark is a sign which separates the goods and services of your company to its competitors. A trade mark can include:
If you successfully register your trade mark you will have the right to use said trade mark within the classes that it is registered. You will also be entitled to take legal action against anyone infringing said trade mark.
For it to be possible for a company to register a trade mark it must be:
- Distinctive to your specific goods and services;
- Not the same as any earlier trade mark you may have registered.
There are restrictions in place as to what can and cannot be used in a trademark for it to be registered. An example of this will be pictures, logos or words which are likely to cause confusion to the public if used as a trademark. Trade marks which describe the goods in question by the use of a characteristic such as the geographical location of the goods or services are likely to be rejected. Trade marks to which the overwhelming characteristic is something to which has become standard in your line of work may also be rejected in the process of registering. It goes without saying that trade marks which are against the law or deceptive will not be freely registered.
It is possible that an application for a trade mark will be rejected by the owner of an earlier mark, if they consider that your trade mark is confusingly similar. On www.ipo.gov.uk there is a register of current trade marks to which it is advisable to check before submitting your application.
It is possible for two trade marks which are identical to be registered if they are within different classes of goods.
To apply for a trade mark your registration needs to be submitted to the Trade Marks Registry. This will register your mark within the UK. To get further trade mark protection within the EU, a trade mark may be registered with the Office of Harmonisation in the Internal Market (OHIM) for a Community Trade Mark.
It is possible to enforce some common law rights over your trade mark if you allow it to remain unregistered, however, you are far more protected if the trade mark is registered. Once registered you will need to pay a renewal fee every 10 years, however, a trade mark can last indefinitely .
To register a trade mark within the UK a TM3 form along with a fee will need to be submitted to the Trade Mark Registry.
Copyright
A copyright relates to the actual expression of an idea rather than simply the idea itself. A copyright can protect sound recordings, films, broadcasts, musical, dramatic and literary work.
A copyright will arise automatically and you do not have to specifically apply for one to be registered. A © is sometimes exhibited to show a copyright and this will express when it was created and by whom.
It is a good idea to get a solicitor to look after a dated copy of the work to show that you have created and when it was created. This may mean that dispute which may arise over who owns the copyright is easily finalised.
A copyright is usually owned by the individual who created the piece of work, however, different rules will apply when the work was created in the course of employment. The general rule is that if the work was created in the course of employment then it is to be owned by the company, unless the employee or contractor’s working agreement specifies otherwise.
Design Rights
A design right is the physical appearance of an item, a design right may apply to industrial, commercial and hand crafted items. A design right has no concerns over how a product works or even if it works at all, just how it looks and the design of it.
You can register your design which will offer protection within the UK for a period of 5 years, to be renewed every 5 years for a period of 25 years. A design right unlike copyright will not arise automatically and an application will need to be submitted.
It is possible to get protection for the whole of the EU by way of a Registered Community Design, this is also awarded for an initial 5 years with a maximum protection period of 25 years.
Further, it may be possible for you to apply for a UK Design Right which will prevent any company or individual from copying your design. This right will last for up to 15 years from the creation of the design.
Unregistered community design is an automatic right which will protect your right for 3 years from the date is it made available to the public. You do not need to apply for this right.
