Introduction
This note sets out, in very brief terms, key points about the main types of legal rights that make up what we call "intellectual property" (abbrieviated to "IP" or "IP Rights" or "IPR").
Types of Intellectual Property
IP falls into two main types:
- Registered rights - you have to take some positive action to get these types of rights
- Unregistered rights - you get these automatically or have to assert them through the Courts.
Territorial Effect
Most types of IP rights are national in nature. That means that having a right in one country doesn't necessarily give you the ability to enforce in other countries. This does vary from one type of right to another.
Registered Rights
- Patents
- Trade marks
- Registered Designs
Unregistered Rights
- Copyright
- Unregistered design rights
- Unregistered trade marks/passing off
- Database rights
- Confidential information
Patents
- For new ideas that aren’t obvious. Patents are about how things work.
- Can’t disclose before apply otherwise the idea isn't new at the date you apply! This is very important.
- Just because a patent granted doesn’t mean its valid or enforceable.
- Need to record trasnsfers.
Trade marks
- For names, logos, slogans, shapes, sounds, smells.
- Register for specified goods/services
- “Trade marks” covers goods & services
- Just because a trade mark granted doesn’t mean its valid
- The more descriptive the mark, the weaker it is
- Need to record transfer
- Brand management needed
Registered Designs
- For protecting what things look like (including logos and screen shots)
- Relevant where the appearance does not relate to the use or function of the article
- Must apply to register within 1 year of first selling of article
- Just because a registration granted doesn’t mean its valid
- Quickest and cheapest right to register
- Need to record transfer
Copyright
- Automatic & unregistrable (in the UK)
- Covers 2D things such as photographs, computer programs, films, written word
- Covers 3D objects like sculptures & buildings
- Doesn’t cover other 3D objects or drawings for them (see unregistered design right)
Unregistered design rights
- Automatic & unregistrable
- UK and EU versions
- Covers 3D objects and drawings for them (except for buildings & sculptures – see copyright)
- Limited life-span – UK version 10 years, EU version 3 years
- UK version – can’t refuse to licence in last 5 years
Unregistered trade marks/passing off
- Goodwill in names, logos, signs etc
- Might be registrable, might be enforceable
- More expensive and more difficult to enforce than registered trade marks
- "Passing off" involves proving you have a reputation, that someone has taken advantage of that reputation and that this causes you financial loss.
Database rights
- Separate rights for databases
- Right to prevent unauthorised extraction and use of material in the database
Confidential information
- Stuff that isn't known
- Can include a collection of known materials
- Protect by physical and practical means and don't disclose without a written agreement protecting the confidentiality.
What about company names?
A company name does not, in itself, give any protection for the name. All it does is stop someone getting the identical company name. The only real way a company name gives protection is through enough use over time to be able to bring a case of passing off against someone else using a similar name. The amount of time this take will depend upon the extend and volume of your trading but is unlikely to be less than a few years. The best way to protect a name is through registration as a trade mark.
What about domain names?
Much like company names, having a domain name only prevents someone else registering exactly the same domain name. If someone registers the same word in a different domain space (you have .co.uk they register .net) then have to resort to either a domain name dispute resolution procedure or bring a legal action based upon passing off.
Useful websites:
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