A Guide to Intellectual Property

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A Guide to Intellectual Property

What is Intellectual Property?

Intellectual Property Rights (or IPR’s) protect the technology, designs, creativity and skills that many businesses are built upon. They can be used to substantially increase the value of a business and to prevent competitors from being able to make use of the technology which is core to the business.

There are five basic types of intellectual property right:

  • Patents (which protect the invention behind a product or process (e.g. the Dyson Vacuum cleaner));
  • Designs (which protect the look or appearance of a product, as well as certain industrial design features (e.g. the iPod));
  • Trade Marks (which protect the “brand” or name used to sell the product (McDonalds, Nike, etc.));
  • Copyright (which protects written materials, such as brochures, instruction manuals and photographs but also software (such as that provided by Microsoft));
  • Know-how (which consists of confidential or secret information, such as a recipe or procedure, which enables a business to operate more effectively or a product to be manufactured in a way that competitors are unable to match (such as the “secret” recipe for Coca-Cola)).

The owner of intellectual property rights can prevent a third party from using the same invention, design, brand, written material or secret information (as the case may be) to make, sell, use or import whatever product or process the intellectual property right protects.

Registration of IPR’s

Patents, registered designs and registered trademarks are protected through being registered in whichever country the business wishes to prevent any unauthorised use by any third party (there are systems which provide coverage in the United Kingdom, European Community and internationally). For further information on registering patents, designs and trademarks visit the UK Intellectual Property Office website at: www.gov.uk/government/organisations/intellectual-property-office

The advantage of registered IPR’s is that they give the owner the monopoly right to use the technology, design or brand which has been protected by registration in the country in which registration has been obtained.

Copyright, unregistered design rights and unregistered trademarks are not registered and the protection comes into being automatically. To enforce these unregistered rights however, it is necessary to show that the intellectual property right involved has been copied

How do I know what images I can use?

The vast majority of images on the internet are likely to be protected by copyright, so it is only safe to use them if:

  • you have specific permission to do so through a licence; or
  • your particular use is specifically permitted in the terms and conditions of the website supplying the image and this is the copyright owner’s website or another website which has the copyright owner’s permission to allow other people to use an image; or
  • if you have established that copyright has expired;
  • if you are using the image in a way which is covered by a permitted act/ exception to copyright.

The use of licensed images is usually much safer than using unlicensed images which offer no protection against infringement.

If I did have to ask permission, how would I go about it?

If permission is required to use an image, permission will need to be obtained from all the copyright owners, whether it is a single image with numerous creators, a licensed image, or an image with embedded copyright works. Sometimes there will be one person or organisation that can authorise permission for all the rights in that image; in other cases separate permission may be needed from several individual rights owners.

Copyright does not disappear simply because the owner cannot be found. Works for which one or more of the copyright owners is not known or cannot be located are referred to as “orphan works”.

You may want to try to find an alternative image that can be licensed through the creator or a picture library. If not, and after a diligent search you cannot trace the copyright owner, you may be able to apply for an orphan works licence from the Intellectual Property Office.

There are some licensing systems which have been set up to enable the public to use and share copyright works with minimal restrictions. One of the most well-known schemes is Creative Commons, which is a set of licences which automatically gives the public permission to do various things with copyrighted work, such as reuse and distribute content. Some Creative Commons licences are for non-commercial use only, so it is important to check the licence terms if using Creative Commons-licensed material.

To find out more visit www.creativecommons.org or visit https://search.creativecommons.org to access its search services.

What would happen if I used something protected by IPR?

The owner of registered or unregistered IPR’s has the right to take court action against another entity which is infringing its IPR’s by making use of them, making, selling or importing goods which infringe the intellectual property rights or assisting others to do so.

If infringement of an IPR can be proved, the owner of the IPR has the right to be paid damages for the loss which it has suffered, for an account of the profits to be taken, for any infringing items to be delivered up or destroyed and for an injunction to be ordered to prevent any further infringement of the IPR’s continuing.

If the owner of an IPR makes a threat that its rights are being infringed and the threat subsequently turns out to be incorrect then the entity which was threatened has the right to counter claim for any loss or damage which it has suffered as a result of the threat being made.

Basic Facts (click to expand)

Patents 2018-02-01T09:35:27+00:00
  • last for 20 years
  • are obtained for an invention that is novel, involves an inventive step and is capable of industrial application
  • can be applied for direct, but generally a Patent Attorney is used to draft a description of the invention in technical language
  • take 3 to 4 years for obtain, but the protection applies from the date of grant
  • it is very important that the invention is not disclosed to anyone before the patent application is filed
  • annual maintenance fees have to be paid to keep the patent alive
Registered Designs 2018-02-01T09:40:36+00:00
  • last for 25 years
  • must be new and have individual character to be protectable
  • can be registered under UK or EU systems, and in certain other countries
  • renewal fees have to be paid every 5 years
  • protect the appearance of a product, including lines, contours, colours, shape, texture, materials
Registered Trademarks 2018-02-01T09:47:25+00:00
  • last for an initial period of 10 years and then can be renewed indefinitely
  • protect the trade name or “brand” which is used to distinguish one company’s goods or services from those of another – can be registered in respect of words, logos, sounds, colours or even smells
  • can be registered worldwide under UK, EU or international systems
  • prevent anyone else from using an identical or similar brand in relation to identical or similar goods (in some cases confusion needs to be proved)
  • use ® to signify ownership
Unregistered Design Rights 2018-02-01T09:41:54+00:00
  • in UK lasts for 15 years from when design first recorded or article made to design or, if article put on sale, for 10 years
  • protects “industrial” design features whether internal or external
  • must be original and not common place
  • EU design right lasts for 3 years
Unregistered Trademarks 2018-02-01T09:44:34+00:00
  • protect a trade name from being used by another company in order to “pass off” its goods as being those of the owner of the trade name
  • must establish goodwill or reputation in the trade name
  • must establish that use of the trade name by another company causes confusion to members of the public and causes damage
  • use TM symbol to signify ownership
Copyright 2018-02-01T09:45:16+00:00
  • mostly lasts for 70 years from the year of death of the author of the copyright work
  • protects “written” works such as books, plays and music. Also protects “visual” works such as artworks, sculpture, photographs, films, TV programmes. Also generally used to protect the source code in software
  • various international treaties mean that copyright is generally protectable throughout the world
  • prevents any unauthorised person from copying the work involved
  • use © to signify ownership
Know-how 2018-02-01T09:46:00+00:00
  • subject to being kept secret, lasts indefinitely
  • protects secret information, knowledge, expertise and the likes of formulae, recipes and manufacturing expertise
  • only protectable whilst it remains secret, unless subsequently protected by registered rights
  • usually protected by the use of confidentiality or non-disclosure agreements

Useful Websites

Ward Hadaway www.wardhadaway.com
UK Intellectual Property Office www.gov.uk/government/organisations/intellectual-property-office
US Patent and Trade Mark Office www.uspto.gov
Office for Harmonisation In The Internal Market (European Trade Marks and Designs office) www.euipo.europa.eu
World Intellectual Property Organisation (international patents and trademarks) www.wipo.int
European Patent Office www.epo.org

For more information please contact Matt or Rebecca.

Matthew Cormack
Matthew CormackAssociate | Commercial
0191 204 4459
Rebecca Graham
Rebecca GrahamSolicitor | Commercial
0191 204 4207

By | 2018-02-01T10:20:33+00:00 October 6th, 2016|Categories: HypeXpert, Intellectual Property|Tags: , , , , |0 Comments

About the Author:

Rebecca Graham is a Solicitor in the Commercial Department at Ward Hadaway. With experience in preparing, reviewing and advising on commercial contracts across various sectors, with a particular focus on IT/technology and healthcare sectors. She also has wide experience of company secretarial matters and has advised on corporate governance and directors duties.

Alex Shiel is head of the Intellectual Property and Information Technology (IP/IT) team at Ward Hadaway and helps clients to protect, develop, exploit and enforce their ideas and new technology using intellectual property rights, commercial agreements such as research and development contracts, technology licences and collaboration agreements and, in the case of disputes, through taking or defending court action.