Guide to Intellectual Property Protection
What is intellectual property?
Intellectual property relates to the ownership of different types of literary, artistic and industrial creations. From inventions to innovative designs, intellectual property can prove to be extremely valuable, not only financially but also for individual and commercial recognition.
Furthermore, as with any other commercial asset, intellectual property can be bought, sold, licensed, mortgaged or otherwise assigned. As such, intellectual property protection is vital in preventing others from exploiting these assets, protecting both innovators and investors alike.
Intellectual property law typically grants the creator or owner exclusive rights over their intellectual asset, albeit for a fixed period of time. This can, however, span several decades depending on the type of intellectual property protection in place. In this way the law seeks to strike a balance between encouraging innovation and protecting investment, as against the wider public interest.
What type of intellectual property protection does UK law provide?
If you are an individual or a business with an intellectual asset, there are various different types of intellectual property protection you may want to consider, each with their own criteria. Although not exhaustive, these can be categorised as follows:
• Design rights.
Patents:If you have invented something new, something not otherwise in the public domain, you may want to consider applying for a patent. An invention is typically a product, a component part or manufacturing process.
Whilst you are free to put your invention into practice, once made public and without the grant of a patent, you or your business will not otherwise be entitled to any intellectual property protection against others using your idea.
To be patentable an invention must be new, involve an inventive step and be capable of industrial application. An invention will not be patentable, for example, if it is simply a discovery.
Trademarks:If you would like to protect your brand, product or company name, registering a trademark may be the most suitable type of intellectual property protection for you or your business.
A trademark can include words, signs, symbols or designs, something that distinguishes your goods and services from those of other traders. It is a commercially recognised way of indicating origin.
That said, not every word or logo is capable of being registered as a trademark. Your trademark will need to be distinctive, such that it clearly identifies your goods and services from those of others. Equally, it can’t be too descriptive of the goods or services, or any characteristics of them.
Copyright:If you have physically produced something, either creatively or in the course of your business, then you may be entitled to intellectual property protection in the form of copyright.
An idea alone is not something you can own, nor would it attract any legal protection. For copyright to apply your work would need to be both original and tangible, ie; of your own creation and expressed in a physical format.
Copyright law extends to both literary and non-literary work, including dramatic, musical and artistic creations.
Design rights:If you are a manufacturer of a product and you have a unique look for that product, you may be afforded intellectual property protection by way of an unregistered or registered design right.
Design rights can include a product’s physical shape or configuration of the whole or part of an article. A design right does not subsist, however, until it has been recorded in a design document or an article has been made to your design.
To register a design, your product must be both novel and have individual character.
How do I benefit from intellectual property protection?
In circumstances where you are entitled to intellectual property protection, you will be granted an exclusive set of rights for a specified period of time.
In the grant of a patent, for example, this can be for up to 20 years. In cases of copyright in written, dramatic, musical or artistic works, this generally lasts the lifetime of the author, plus 70 years after the date of death.
As such, for the duration of these rights, the law not only provides you with legal exclusivity over your creation, but intellectual property protection against theft and unauthorised use.
Examples of how intellectual property protection may benefit you or your business are as follows:
- A successful patent application can prevent others from making, using or selling your invention
- A distinctive trademark can enhance your reputation and prevent competitors from imitating your brand or business identity
- The use of copyright can give you the right to control the way in which your artistic material may be used
- A design right can protect the novel appearance of your product, such that it cannot be copied or reproduced by others without your permission.
Am I automatically entitled to intellectual property protection?
The nature of your intellectual property will determine your right to legal protection. In some cases you will be automatically entitled to protection, although in others it may be necessary, or even preferable, to make an application to the UK Intellectual Property Office.
Both copyright and design rights attract automatic protection. However, a design right can also be registered, provided it meets the eligibility criteria, and a registered right is often easier to enforce.
Similarly a trademark need not be formally registered, that said, your common law rights acquired by simply trading under a certain mark can again be difficult to enforce. Further, this does not prevent another person from registering your mark.
In the case of a patent, an application is absolutely necessary and astonishingly lengthy, up to 5 years in some cases. You may, however, be entitled to more than one type of intellectual property protection, for example, copyright could be used to protect drawings of your product or component part.
In the event that an application for intellectual property protection proves necessary, it is important to keep your ideas confidential. If your idea needs to be discussed you have the option of entering into a non-disclosure agreement.
How do I enforce my intellectual property protection rights?
It is a potential infringement of your intellectual property protection rights if a person seeks to steal, copy, reproduce, sell or otherwise use your creation without your permission or consent.
The unauthorised use of trademarks, copyright and design rights may constitute a criminal offence, in some cases liable on conviction to imprisonment and/or a fine. Your local Trading Standards office is the leading enforcement agency for criminality relating to intellectual property protection.
Further, you have the right to take civil action, claiming injunctive relief and damages, against those who may be guilty of infringing your rights. However, advice should always be sought from a professional specialising in intellectual property law as to the cost and benefits of litigation.
The use of mediation, licensing and informal agreement may provide a more timely and cost effective solution for all parties involved.
Should I seek legal advice in relation to my intellectual property protection?
There is a complex framework of legislation that governs the application of intellectual property protection.
Furthermore, the registration process for patents, trademarks and designs provides its own potential pitfalls. As such, obtaining and enforcing intellectual property rights can often be confusing, costly and time-consuming.
It is always best to seek professional legal advice to ensure that your intellectual property is adequately protected. A lawyer or agent specialising in intellectual property protection can help you in the following ways:
- advise you on inventorship and ownership, for example, where a product or process is invented during the course of employment
- search for existing patents, trademarks or registered designs prior to you submitting any application
- draft the necessary documentation in support of your application to the UK Intellectual Property Office
- help negotiate licensing opportunities, as well as help you work around the existing rights of your competitors
- litigate or help mediate against any infringement of your rights
advise you on obtaining intellectual property protection outside of the UK.