Intellectual property: what it is and how to protect it
What is intellectual property?
In very simple terms, intellectual property is any intangible property that has value, however small.
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.
Trading 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 if you set up as “Tesco.me”, you might be in line for a lawyer's letter if you sell groceries on the Internet - despite the large size of the market.
Internet domain 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 Beef Burger" 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 using the same trade name. The choice of an appropriate Internet domain name is therefore greatly more important than the choice of a name for a land-based business limited in physical area.
What is a trademark?
A trade mark is the modern word for any sign that can distinguish the goods and services of one trader from those of another. It can include, for example: words, logo, picture, image or a combination of these.
Of course it also includes such items whether they are reproduced on paper, or on a web site, or in other soft copy.
You can read more about this particular type of IP here.
Before trade marks were so named, there existed branded products. The oldest recorded brand, which has been in continuous use in Northern India for 2000 years, is known as 'Chyawanprash', a herbal paste consumed for its purported health benefits.
Brands have developed since then in different parts of the world to provide recognisable identity to many goods and works. Hallmarks on goods made of gold and silver are an example. The artist’s name on a painting is another example.
Brands first came into universal use when manufacturers of goods in the 18th century realised that they could sell more of their product if it carried their name. In this way a brand became a trade mark - a mark which a buyer could trust.
Bass, the brewers at Burton-on-Trent, claim that their red triangle brand was the world's first trademark. However, there are many other claimants to that title.
As time passed, the benefit of a strong brand became more obvious, and its value rose. Before long, mercantile nations realised that they must set up a registry of brands to protect their traders. So trade mark offices were opened and laws were made to protect registered marks.
So now, a trade mark is a marketing tool so that potential customers can recognise the product of a particular trader.
To be registerable, a trade mark 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.
You cannot register a mark consisting of one or more words in common use. That is why companies with one word names must also associate the name with a strong image or icon. “Apple” or “Orange” would not be registrable alone, but “Microsoft” would be (and presumably is).
Although the detailed rules differ from one jurisdiction to another, it is generally possible to register a trade mark only in the specific categories for which it is used, or intended to be used. But see about Passing off below.
What is a patent?
We often think of a patent as the means of protection of a product. We see the product. But the protection is actually for the idea or process on which the product depends. So a patent protects working parts and processes.
A patent is a right granted by government to the inventor of a physical product or process for a term of years, which differs from one country to another. Most countries grant protection for 15 to 20 years. After that, anyone can copy the idea, in any way.
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 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. An obvious application here is the pharmaceutical industry, where a new drug has a limited life at a high price before all the world starts to make generic versions.
The technical conditions that an invention must fulfil in order to be patentable are:
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.
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.
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.
You can not 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 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 in the UK 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 only person who can claim copyright is the originator of the work, or some person to whom the originator has sold or transferred the copyright. Copyright is an asset that passes on death as part of the estate of the dead person. Copyright may not have value until exploited by licence or sale or performance, so it is unusual for its value to be subject to inheritance tax unless that value has been crystalised.
Examples of copyright protected work are:
- literary works, such as novels, instruction manuals, computer programmes, song lyrics, newspaper articles, but not names or titles
- dramatic works, including dance or mime
- musical works
- 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 an idea. It protects the way the idea is expressed in a piece of work, but does not protect the idea itself. An idea has no protection, however valuable it may be. Secrecy is the only way to prevent someone stealing your idea.
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:
Avoid copying other people's work, of any sort.
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.
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;
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.
There is no copyright in words or representations that 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.
Know-how is not a term acknowledged in law except as defined in a legal agreement.
Generally, it means the body of knowledge used to produce some good or provide some service. You could summarise it as “how they do it”. It is inevitably vague and refers to a different knowledge base every time it is used. But make no mistake - it can be very valuable. If it is valuable in your business, you should protect it as best you can.
Protect your IP rights
Once an IP right is registered, the fact of registration protects it for the specified period of time within the limitations of the registration.
Rights that are not registerable, such as copyright, must be safe guarded by vigilance.
If you knowingly accept that someone is using your material, then that user gradually acquires a good defence to an action by you for his breach of your copyright. Particularisation is impossible.
Just keep your eyes open and seek advice where you think appropriate.
Over the years, UK law has established the tort (basis of a claim in court) of passing off. That means what it says.
If I dress up my product so that a prospective buyer might confuse it with your, original, product, then you can sue me in a passing off action. A passing off action is a route to protect your intellectual property in addition to heads of claim based on registration, breach of copyright, and so on. The attraction of a passing off claim is that you can claim in the round. Your claim can be based on the collective effect of many small similarities.
Consequently, your passing off action might claim that my product, relation to yours:
- was used for the same purpose
- was in a similar bottle
- used a similar label, with same fonts, colours and style
- had a similar name
Recognising IP in legal documents
One of our particular strengths at Net Lawman is our recognition of breadth of, and the enormous value of intellectual property, and the consequent importance of protecting it in all our document templates.
Even if the subject has not been given its own named paragragh, you may be sure that provision has been made wherever appropriate.
Please note that the information provided on this page:
- Does not provide a complete or authoritative statement of the law;
- Does not constitute legal advice by Net Lawman;
- Does not create a contractual relationship;
- Does not form part of any other advice, whether paid or free.
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