Insights

Intellectual Property and How to Protect it

October 14, 2022

Your company's intellectual property may be one of your most valuable assets. But how do you go about protecting that asset? In this article, we explore intellectual property rights, copyright, trade marks, patents, and designs. So, what intellectual property might you have in your business and how can you protect it?

What is intellectual property?

Intellectual property is an overarching term which describes a range of rights relating to certain information and ideas and their format (for example, written word or drawing). Let's dive a little deeper...

Registered and unregistered rights

Intellectual property rights fall into two camps: registered and unregistered rights.

Registered rights are those that you apply for or register with an official body.  Unregistered rights arise automatically, without the need for an application or registration.  

Registered rights offer greater protection than unregistered rights. Unregistered rights essentially prohibit copying, whilst registered rights grant the owner a ‘monopoly’ right, meaning they can stop others from using the relevant IP in any way without their permission.

Unregistered rights include:

  •   copyright;
  •   unregistered trade marks, and
  •   unregistered design rights.

Registered rights include:

  •   trade marks;
  •   patents, and
  •   registered designs.

Copyright

Copyright gives the author or creator of original literary, dramatic, musical and artistic works (including software, sound and music recordings, film and tv recordings, broadcasts and the layout of published works) certain rights over these works. Copyright arises automatically, upon creation.

Copyright protects the expression of an idea; it does not protect the idea itself. Whilst it protects against direct copying, it does not stop a third party from independently developing the same idea.

For artistic, musical, dramatic and literary works, copyright lasts the life of the author, plus 70 years after death. Sound and music recordings are protected for 70 years from publication. Broadcasts are protected for 50 years from the date of making, and the layout of published works is protected for 25 years from publication. And memes? Well, we have an article for that.

Trade marks and passing off

Registering a trade mark is an effective way of protecting your brand. The trade mark may relate to your business, product or service name or be a symbol that you use to distinguish your business from others. Having a registered trade mark gives you the right to stop others from using the same mark.

Some businesses use trade marks without registering them. Whilst registration offers more certainty, you may also accrue goodwill through the use of your unregistered mark. If another party starts using your unregistered mark, you could potentially bring an action against them for passing off (where another party seeks to sell their goods or services under the pretence that they are yours). However, this is not easy or cheap! At the very least, you would need to show a significant reputation associated with the mark, a misrepresentation to the public causing confusion, and damage to your business.

Designs

Design rights protect the appearance of the whole or part of a product. Whilst a design right arises automatically, you can choose to register the design, which will give you a monopoly right.

In order to register a design, it must:

  •   be new and individual;
  •   not be offensive;
  •   be your own IP;
  •   not make use of protected emblems or flags;
  •   not be an invention.

Some of these requirements can be quite nuanced and you should seek the advice of a design right expert if you need to.

Registering the design and maintaining renewals is relatively inexpensive. UK registration provides protection for 5 years, which may be renewed for five-year periods up to a total of 25 years.

Protection is also available for unregistered designs, which prohibits copying. The right is created when either a qualifying design has been recorded or an article has been made to that design. To qualify for protection, designs need to be original and not commonplace. A design will not be deemed to be original if it has been copied. Determining whether a design is commonplace or not is not straightforward and must be considered on a case-by-case basis. Again, this is something that a design expert could support you with.

Unregistered design protection is available for between 10 and 15 years, depending on the particular circumstances. In the final five years of protection, any third party is entitled to obtain a licence to make and/or sell products incorporating the design.

Patents

Patents protect inventions. Patents are not automatically granted; they must be applied for. If successful, patent holders are granted a monopoly right over inventions and new and inventive technical features of products and processes.

Patents provide a high level of protection and are appropriate where inventions have taken a lot of time and money to develop.

To qualify for patent protection, an invention must:

  •   be new;
  •   involve an inventive step;
  •   be capable of industrial application, and
  •   not be specifically excluded from protection (examples include computer programs and methods of doing business and providing medical treatment).

Public disclosure of detailed information is required, which could be exploited by competitors. Obtaining a patent is a complex and expensive process and expert support is required. As such, careful consideration should be given to the pros and cons of patent protection.

Patent protection lasts for 20 years in most countries.

Tips and tricks for protecting intellectual property

So, we've covered the avenues available for protecting your intellectual property. But what are some tips and tricks to push you further? Let's dive in.

  • Whilst copyright arises automatically, you could opt to register for copyright protection with The UK Copyright Service. This provides an independent record of copyright ownership, which can help put a stop to infringement.
  • A key issue with copyright is ensuring that you own all work created on your behalf. Anything created by your employees should automatically belong to you but check your employment terms reflect this.
  • If you engage a third party to create something for you (for example, marketing copy) ensure that you sign terms of business that transfer ownership of the IP to you. 
  • Be sure to assert your copyright by including a copyright notice where you can.
  • Ensure that you include provisions covering your ownership of IP in your website terms and terms of business.

Wondering how to protect your intellectual property? Discover how our intellectual property lawyers can help.

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