Guard your Intellectual property

In very simple terms, it is any property, which has value that is intangible. The word that springs to mind most often is “rights”.  Examples are design rights, rights in a registered patent or trademark, rights to use a particular name, and so on.

Business names and domain names

Disputes regarding names usually concern a situation where a trader uses a name that is very similar to another established trader in the same line of business.  The only exception is that a trader cannot be prevented from trading any product in his own name.  Thus, Joanna Sainsbury can set up selling grocery products wherever she likes, but Tesco.me might be in line for a lawyers letter if they sell groceries on the Internet - despite the large size of the market.

Internet names

The Internet presents particular problems in that the law of most trading countries protects a trade name only within a particular locality.  If “Mighty Beefburger” trades only in Cornwall, their name is not protected from someone who wishes to use the very same name in Derbyshire.  Difficulties arise if both firms start selling beef burgers by post on the Internet in the same name.  The choice of an appropriate Internet name is therefore greatly more important than the choice of a name for a land-based business limited in physical area.  The UK Patent Office is responsible for registration of intellectual property in the UK. 

What is a trademark?

A trademark is any sign that can distinguish the goods and services of one trader from those of another.  It can include, for example: words, a logo, pictures, or a combination of these.  Of course it also includes such items whether they are reproduced on paper, or on a web site, or other soft copy.

A trademark is used as a marketing tool so that customers can recognise the product of a particular trader.

To be registerable, a trademark must be distinctive for the goods or services for which registration is sought.  It must not be deceptive, or contrary to law or morality.  Of course it must not be identical or similar to any other mark already registered for the same or similar goods or services.

What is a patent?

Patents protect working parts and processes.  A patent is a right granted by Government to the inventor of a physical product or process for a limited period.  The grant of a patent prevents anyone else from making, using, or selling the invention without the permission of the inventor.  When a patent is granted, the right that it creates can be bought, sold, rented, or hired, just like any other business asset.

Patents generally cover products or processes that possess or contain new functional or technical aspects.  Patents are concerned with how things work, what they do, how they do it, and what they are made of, or how they are made.  The vast majority of patents are for incremental improvements to existing knowledge.

The technical conditions that an invention must fulfill in order to be patentable are:

1)   The invention must be new - it must never have been made public in any way, anywhere in the world, before the date on which an application for a patent is filed.

2)       It must involve a new step or process - an invention involves an inventive step if, when compared with what is already known, it would not be obvious to someone with a good knowledge and experience of the subject.

3)       It must be capable of application to a physical process or object - an invention must be capable of being made or used in some kind of industry.  This means that the invention must take the practical form of an apparatus or device, a product such some new material or substance, or an industrial process or method of operation.

4)      You cannot patent:

• A discovery
• A scientific theory or mathematical method
• An aesthetic creation, such as a literary, dramatic, or artistic work
• A scheme or method for performing a mental act, playing a game, or doing business
• A presentation of information or a computer programme.

Design registration

Design registration protects the outward shape and appearance of a product.  A registered design is a monopoly right for particular features contained in the lines, contours, colours, shape, texture, or materials, or ornamentation of a product.  Registration can last for a maximum of 25 years.  Like other intellectual property it can be bought, sold, or licensed.  Note that registration of a design is a right additional to any other design right or copyright protection that may exist automatically in the design.  In practice, design registration is the Cinderella of intellectual property.  Most legal claims use as their basis the passing off or breach of a patent or copyright, rather than breach of a design right.

What is copyright?

Copyright arises automatically when any of us produce any “work” that is capable of being protected by copyright.  That means that there is no official register for copyright.  It cannot be registered.  As a result, there is no action you can or should take to protect your copyright.  Copyright comes into effect immediately, as soon as something that can be protected is created and “fixed” in some way, e.g. on paper, on film, via sound recording, as an electronic record on the Internet, and so on.  For this reason it is sensible to mark your work with the copyright symbol ©, followed by your name and date to warn others against copying it.  However, this does not improve or enhance your legal rights in the UK.

The type of works that copyright protects is:

• Original literary works, such as novels, instruction manuals, computer programmes, song lyrics, newspaper articles, but not names or titles.
• Original dramatic works, including dance or mime.
• Original musical works.
• Original artistic works, such as paintings, engravings, photographs, sculptures, collages, works of architecture, technical drawings, diagrams, maps, and logos.
• Published editions of works.  That is to say the typographical arrangement of a publication.
• Sound recordings, including recordings of other copyright works such as musical or literary recordings.
• Films, including videos.
• Broadcasts and cable programmes.
• Electronic arrangements of information such as may be produced by a database.

But note that copyright does not protect ideas.  It protects the way the idea is expressed in a piece of work, but does not protect the idea itself.

Implications of copyright

Your five year old daughter has copyright in the drawings she brings home from school, but your employer has copyright in the web page you create in the course of your employment.  Because copyright exists everywhere around us constantly, it is both difficult to protect and easy to breach inadvertently.  Hints for the conduct of your business:

1. Avoid copying other people’s work, of any sort.
2. If you want to save money by avoiding “reinventing the wheel”, then find a source of satisfactory copyright material that is available for sale or license.  For example, the Internet provides a vast quantity of pictures and graphical representations, which are available for use at a very modest price.
3. A very great deal of material that may apparently be copyright is in fact itself copied from material produced by someone else at an earlier date.  Big companies are fond of flexing their copyright muscle in a way, which is in fact insupportable.  If a copyright claim is made against you, your first question should be to ask the claimant to provide details of the circumstances of the copyright creation - when, and by whom.
4.  A legal action for breach of copyright usually consists in two parts - first damages for commercial loss, and second for a court order to prevent you from further breach.  If your breach is new and innocent, it is most unlikely that the complainant will be able to prove money loss.  
5. There is no copyright in words or representations which cannot be said to constitute a “work”.  The scribbled drawing of a five year old is unique.  This set of notes you are now reading is unique.  Individual phrases from these notes are unlikely to be unique.  Lists of addresses extracted from a directory do not have copyright protection.  Even the totality of the list of names and addresses may not have protection.  The ordering of the list and the way it is laid out and presented certainly does have protection.

Protect your IP rights