In this article, which forms part of our series of Articles on “How to Avoid” common legal problems, Cassandra McCarthy looks at the ways in which you can stop third parties from ripping off your inventions, infringing your trade marks or copying your work.
Intellectual Property Rights (IPR) are hugely important and very valuable assets to businesses, therefore protection against and enforcement in respect of the infringement of those rights should be pursued vigorously and taken very seriously.
What you need to do to protect your rights depends on precisely what you are protecting, as we explain below.
What are IPR?
IPR allow you to own, control and protect the products of ‘human intellect’ which you have created. You can therefore control the use of, for example, an invention; software or brand that you have created.
Types of Intellectual Property
There are numerous categories of IPR that cover different works/items created:
- Copyright – prevents the copying of ‘artistic output works’ (see further details below of examples).
- Patents – protect inventions, to include how things work.
- Trade marks – are used to protect brand names and/or logos.
- Registered design rights – protect new designs relating to the lines, contours, shape, texture or materials of a product.
- Unregistered design rights – protect any shape or configuration of a whole or part of an article. It protects functional objects, to include parts of a machine which are not in public view.
- Database rights – protect collections of information against copying.
What is protected? What rights am I given? How long does protection last?
- Copyright affords protection for ‘artistic output/works’ which includes but is not limited to literacy, musical, artistic works, films. It provides protection against third parties from making identical or similar copies of the artistic works. It is automatically granted from when the work first published therefore you do not need to do anything to secure your rights.
- Patents need to be registered. They protect ‘new’ inventions which involve an inventive step (i.e. something that is a leap over existing technology) and it is capable of being industrially applied. Protection lasts for 20 years from the application.
- Registered trademarks give you exclusive rights to a mark. It prevents third parties from using your mark in the course of trade for identical goods or services and/or for similar goods or services if there is likelihood of confusion and /or for dissimilar goods or services if the use is detrimental to or take unfair advantage of the mark. If the mark is registered it is easier to sue for infringement. A benefit of a trademark is that it indicates the origin of source of the product. Substantial investment in often made in a mark/brand in advertising and building up the brand. You should ensure, therefore, that your mark is registered and accordingly protected. The rights last indefinitely whilst the mark is registered.
- Registered design rights give you the exclusive right to use the design. A third party will infringe your rights if he does anything which is your right, i.e. making, offering, putting on the market; importing; exporting or using the product to which the design is incorporated, without your consent. Registered Design Rights need to be registered with the Intellectual Property Office. The rights last 25 years from registration.
- Unregistered design rights protect three dimensional shapes. The rights prevent copying of the design. The right is automatic and lasts for 10 years.
- Database rights prevent a third party from extracting or utilising the contents of the database. The right arises automatically upon creation of the database and lasts for 15 years from the creation of the database.
Summary
In order to protect your IPR, you first need to consider what you are trying to protect. You then need to establish whether you need to take any steps (such as register your right) so to obtain the maximum protection. If a third party infringes your rights we would strongly advise obtaining legal advice about how to approach the alleged infringer, as if you make allegations which have no grounds, then you may end up having to pay damages to the alleged infringer. IPR are valuable assets to your business, so ensure you protect them as zealously as the family silver.
For more information on this or any other similar law issue, please contact Cassandra McCarthy by emailing Cassandra or by calling her on 08450 990045, or speak to your usual contact in the Commercial Disputes Team.
This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.
