Safeguarding creativity: the fundamental principles of IP

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Intellectual Property (IP) always seems to pique media attention. In 2022, brands such as Red Bull and Zara hit the headlines with stories relating to disputes around IP rights; and in a world where everyone is a brand, celebrities such as Usain Bolt and Mariah Carey also experienced their fair share of IP litigation.

But if we move away from the headlines, IP is still an area of law which many do not fully understand, where the different Intellectual Property Rights (IPRs) often get confused with one another.

With the continued rise of imitation products, social media, and a growing virtual world, it is essential for business owners to fully understand what IPRs are relevant to their company and what steps need to be taken.

IP in brief

In short, IP aims to protect creations. In the UK there are five main IPRs: copyright; design – both registered and unregistered; patent; trade mark – both registered and unregistered, and a trade secret.

Many countries also recognise these rights. However, due to the territorial nature of IPRs, it is necessary to consider them on a case-by-case basis.

In this article we will simply focus on IPRs in the UK. However, our patent attorneys are European qualified, and our Swedish office can handle EU trade mark matters. Therefore we are also able to offer assistance for European matters.

Copyright

Copyright protects creative or artistic work. This might be in the form of a book, play or music; or even software.

Copyright is automatic, provided certain requirements are met. Unlike other IPRs it cannot be registered in the UK or Europe, but it can be registered in countries such as the US. The creator is the owner of the copyright, and it generally lasts 70 years from the death of the creator or author.

Design

A UK design right protects the look or appearance of a product or article, such as the look of a car, bottle, or item of clothing.

A design right can be registered or unregistered. A registered design right lasts for up to 25 years (provided it is renewed every five years) and can be registered at the UKIPO. An unregistered design right lasts anywhere between 3 to 15 years, depending on which particular unregistered right is being claimed and when it was made available to the public.

In both cases there are requirements that need to be met to ensure that the design right is valid. The UKIPO does not examine the design application for a registered design to ensure it satisfies these requirements, it only confirms that it satisfies the filing formalities, so it is advisable to seek an IP professional’s advice during the process.

Patent

A patent protects inventions which have not yet been disclosed to the public (except for in exception circumstances), and which are therefore said to be ‘novel’. As well as ensuring that the invention is ‘novel’, there are various other requirements that need to be satisfied to secure a granted patent. A patent attorney will guide their client through the patent application process. If successful, a patent can last up to 20 years from the filing date.

Trade mark

A trade mark protects your brand names and logos. It can last indefinitely if renewed every 10 years.

Other elements of a product such as the shape, the colour, or even smell can also be protected by trade marks; however securing protection for these elements is often very difficult.

A trade mark can be registered or unregistered. An unregistered right is created when a mark has been used for some time and, as a result of this use, has goodwill associated with it. This is also known in the UK as ‘passing off’. However, enforcing a right under the laws of passing off can be onerous and difficult. On the other hand a registered trade mark has a stronger right to enforce as it exists on the register and does not need evidence to prove it exists. Much like the other registered IPRs, a trade mark can be registered at the UKIPO, and a trade mark attorney can advise and help you through the process.

Trade Secret

A trade secret is confidential information which is not known outside of the business. This can range from supplier and client contacts to a manufacturing process like Coca Cola’s recipe. It is important that everyone within your company is aware of what information is confidential to ensure that it does not fall into the wrong hands. An attorney will be able to advise on measures to take to safeguard your trade secrets, for example a non-disclosure agreement.

So why is IP relevant to business owners?

No matter the size of the business, if it has a product, a name, or any advertising materials or brochures, it has IP. This should not be disregarded but protected.

Knowing the IPRs that the company holds, and securing the registered rights where necessary, is vital. This will enable protection against third parties who may be trying to copy or imitate the business.

In addition, it will enable the company to exploit its IP. IP can be a business’ most valuable asset which can be sold, used as security, or licensed to another third party to create a further income.

Finally, it is important to understand IP to ensure that the company’s business activity is not infringing on the IPRs of another third party. The best way to understand this is to conduct clearance or freedom to operate searches.

If you would like to know more about IP protection, please contact the author or your usual Barker Brettell attorney. You can also find out more by visiting our IP for startups page which has a list of useful links and more information.

 

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