Intellectual property (often abbreviated ‘IP’) is a term that is used to describe a wide range of types of property. IP rights may be said to be ‘intangible’ in the sense that they do not constitute physical assets but nonetheless their importance to companies, whether small or large, cannot be underestimated. They are of fundamental importance to small and medium-sized companies (SMEs) as they enable such companies to grow and establish a reputation in the marketplace and ultimately a strong IP portfolio will help to enhance the value of the company to both financial institutions and investors.
Action taken by the easyGroup to defend and protect their IP rights on numerous occasions (including the company’s typeface, the colour (orange) and the use of the word ‘easy’) serves as a clear illustration of the many and varying types of IP rights that exist and how they can be enforced and protected successfully.
In determining what intellectual property advice is most needed, it is necessary to consider the primary types of intellectual property which are capable of protection. These broadly include the following categories:
Design rights may be registered or unregistered, with the Registered Designs Act, 1949 providing protection for the whole or part of a design. A design must meet certain qualifying criteria including, that the design be new, possesses individual character, it is not dictated purely by the product’s technical function and the design is not contrary to public policy or accepted principles of morality. The IPO processes registers designs in the UK and Registered Community Designs (RCD) by the OHIM.
This right arises automatically in original artistic, dramatic and literary works, including computer programmes and protects the expression of an idea not the idea itself. Ownership of copyright will permit the owner to prevent unauthorised use including the making of copies or placement of the work on the internet. The Copyright, Designs and Patents Act, 1988 sets out the types of creative works that have copyright protection under English law. Copyright protection does not last indefinitely and the period of protection varies for different works.
Trademarks are signs or symbols which distinguish products or services from those of other businesses and gives the owner the exclusive right to use the mark. To register a trademark it must fulfil the definition contained in the Trade Marks Act, 1994 namely, ‘any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings’ and an application made to the Intellectual Property Office (IPO). To be capable of registration, a mark must be in a manner which enables the appropriate authorities and the public to determine the clear and precise subject, be distinctive, capable of distinguishing goods and services and not be excluded by statute. To register a mark outside the UK, a Community Trade Mark (CTM) can be applied for to the Office for Harmonisation in the Internal Market (OHIM).
If a trademark is not registered and another person uses that mark, an action for passing off may be permissible if it can be shown that the mark has goodwill (i.e. a good name/reputation), misrepresentation has occurred (the public has been misled) and that damage has been suffered as a result of this.
Patents provide protection for inventions and new and inventive technical features of products and processes and the Patents Act, 1977 governs these rights. In order to qualify for protection, an invention must be new, involve an inventive step, not be specifically excluded from protection and be capable of industrial application. To obtain a patent in the UK, an application must be made to the IPO and to the European Patent Office (EPO) for patents in EU member countries.
This information is often termed ‘trade secrets’ or ‘know-how’, and although these rights are not strictly IP rights, it can be possible to protect this type of sensitive business information. To be enforceable it must be confidential in nature, it must have been imparted in circumstances in which an obligation of confidence arises and its unauthorised use would be to the detriment of the person imparting it.
As this analysis indicates, there are many issues to be determined in order to properly protect your businesses intellectual property. A good starting point is the Intellectual Property Office (IPO) which provides useful tools and resources which are helpful for both SME’s and start-ups when considering issues in relation to their IP rights.
The ‘IP Equip’ tool helps companies understand their IP assets and access information on how to adequately protect them using IP rights –http://www.ipo.gov.uk/equip
Also, the ‘IP Health Check’ is a tool which helps companies to assess the extent of any IP, whether they own it and if so, how best to protect it and exploit it commercially – http://ipo.gov.uk/ip4b/ip4b-uk/iphealthcheck.htm
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