Intellectual property is one of your most valuable assets, giving you the competitive advantage over your rivals. You need to understand the scope of your intellectual property rights. Some areas may be commercially valuable others may not.
Adopting the right approach can save you money by identifying what needs to be protected and how best to do this and secondly in deciding how to enforce or exploit those rights. The following notes provide a guide to the various intellectual property rights which exist.
Registered IP rights: Trademarks
Trademarks protect your reputation and may last indefinitely if renewed and valid. They are signs which identify your goods and services and distinguish them from others. Typically a trademark consists of words, logos, pictures or a combination of any of these, although you can also register shapes, colours and sounds.
To be capable of registration your trademark must be: distinctive; not deceptive, illegal or immoral; and not similar or identical to any earlier marks.
Registering your business or brand name as a trademark will give you the exclusive right to use that mark for the specific goods or services. Therefore, you can stop people from using identical or similar marks for the same or similar goods or services or even (in certain circumstances) for different goods or services.
If you do not protect your name or brands in this way you may have some protection if you have built up a reputation in your name, get-up or trading style and you may be able to stop others using it in a confusing and misleading way. However, a registered trademark is much easier to protect, exploit and enforce.
These are not strictly intellectual property but related to brand protection and reputation. Domain name registrations, like company name registrations, do not give you any entitlement to trademark protection (although you may have some rights in passing off). Although there are now some low-cost domain name dispute mechanisms in place these favours the owners of registered trademarks and domain name registration is still decided on a “first past the post” basis.
A patent is a monopoly right granted by the government to an inventor of a product and gives them the right to stop others from making, using or selling the invention without his permission. Generally, patents protect products or processes that contain new functions, materials or other technical aspects. The vast majority of patents are for improvements to existing technology rather than something that is wholly new.
Patents and rights in the invention can be bought, sold, rented or hired. They are, however, territorial rights so a UK Patent can only be enforced in the UK.
A registered design protects the look and design of your products for up to 25 years. You can formally protect the appearance of the whole or part of your products, including lines, contours, colours, shapes, texture and materials.
To qualify for protection your designs must be new and have “individual character”. You can take advantage of a 12-month grace period in which to test the market before seeking registration.
Registered designs are an additional protection to any or copyright design right that may automatically exist in the design.
Unregistered IP rights Copyright
Copyright protects creative endeavour and protection depends on the type of copyright. Copyright arises automatically when original works are created and protects the expression of ideas rather than the ideas themselves.
Copyright may exist in literary works (even manuals), software, photographs, technical drawings, diagrams, logos, sound recordings and broadcasts. Your business will almost certainly use, create or commission material that is protected by copyright.
Design right protects the shape or configuration of your products for up to 10 years. Design right relates to functional designs, which are original and not commonplace. The protection runs for ten years from when the products are first marketed (subject to the overall protection of 15 years from when the design was created) and will enable you to stop others copying your designs.
Community unregistered design right also protects designs for three years. If you choose not to register a design (capable of registration) then it will also be protection for three years from first marketing under recent European legislation.
Beware IP Scams!
If you seek to protect your intellectual property through the use of a trademark or other means, you may well find that there are a number of organisations which claim to offer greater levels of protection. Aided by grand-sounding names and official-looking stationery which also lend a degree of urgency to the matter, they offer – for a fee – to place your trademarks in a register.
However, you should be careful before you part with your cash. Organisations that have official status do not operate by sending invoices for registration as soon as your trademark is granted.
If you receive an invoice, especially one from abroad, offering entry into a register or directory of any kind, take care.