Intellectual property, also known as IP, can be secured on what you, your team or your business create. This can include: inventions, design work, literature, websites, images, music, brand names and more.
There are two main types of protection you can get depending on the nature of what you have created, (i) protection that is automatic and (ii) protection that you will have to apply for.
IP protection that is automatic
Generally, any ‘work of the mind’ that is originally created by you will be automatically protected by copyright. It is also useful to put third parties on notice of this through publishing the © mark, as well as your name and year of creation next to or within the work.
Unregistered Design Right
You should note that unregistered design rights only apply to an object’s shape and the way the different parts of the design are arranged. You also have the right to register your design (if it meets the eligibility criteria) for better protection but this will require you to pay a fee.
IP protection you need to apply for
For example, Dove is trademarked for a haircare, skincare and deodorant brand, but there is another trademarked Dove brand that manufactures and supplies sweets and chocolates.
However, you can only qualify for a patent if you have invented something new/unique, inventive and industrially applicable.
How to apply for Intellectual Property protection
In cases where you can apply for intellectual property protection, as a first step you can refer to the guidance on the UK Government Intellectual Property website to see what the process involves. Fees will apply depending on the number of designs, trademarks or patents you wish to submit.
Design registration process
If you are eligible to register your design(s), specific documentation has to be prepared to submit your design. You can add illustrations to your application and also register just part of a design, but this will need to be specified on your application.
After your application has been sent, you can expect the Intellectual Property Office to examine your case within approximately two weeks, at the end of which your design will be registered immediately. However, if there are objections or if your registration has been deferred you can request a hearing or dispute the decision within two months.
Please note that you will have to renew your design registration every five years to keep it protected.
Patent application process
There is a list of things that cannot be patented, such as literary works, medical treatment methods and, on the whole, mobile applications. You can research this information yourself or hire an IP solicitor for advice on what is possible and what is not. If your invention is completely new and unique, your chances of getting patented will be significantly higher.
However, due to the complicated nature of the application process, only around 1 in 20 applicants will successfully get a patent without any professional help. If you do choose to get professional assistance, you will need to consider the cost of hiring a solicitor as well as the fees you will need to pay for your patent application.
It is also important to note that the patent application process normally takes up to 5 years to complete (but sometimes longer). After this, you will then need to renew your patent protection regularly as well as defend any legal disputes to your invention. There are also various ways to file a patent, including through the European Patent Office and the World Intellectual Property Organization (WIPO).
Trademark application process
Before you begin the process, it is advisable to check whether an identical or similar trademark has already been registered in a similar field. This is best done with the help of an intellectual property solicitor, although you can have a go yourself on the UK trademarks database.
There are also several trademarks that will not be capable of registration, such as offensive language/images, misleading information and descriptive or non-distinctive words or features.
After you apply, you can expect an examination report on your application within two months. After this, you will have another two/three months to find out if there are any objections. If the trademark is published it will be featured in the trademarks journal for another two months, where anyone can oppose it. If there is no further opposition, the registration process will be completed, and you will receive a certificate from the UK government.
How can an Intellectual Property Solicitor help protect your IP?
While you can take steps to protect your intellectual property on your own, expert legal help can provide a better understanding of the rights and legal processes behind each form of intellectual property – especially if trying to protect several types of intellectual property.
As well as helping prove your case in some instances, intellectual property solicitors can offer valuable advice around areas such as: navigating the existing IP rights of competitors, helping to protect your business in the case of disputes and even commercialising your intellectual property with licensing and assignment opportunities.
An intellectual property solicitor would be able to offer advice on areas such as IP infringement or intellectual property theft. With the help of a solicitor, you can increase your chances of getting better domestic IP protection and if necessary, international protection to ensure that your creative output truly belongs to you.
How to protect your Intellectual Property after Brexit
The transition period for the UK’s departure from the EU allows for EU law to continue to operate in the UK until 31 December 2020. By the end of this period, the Intellectual Property Office or IPO, will aim to convert 1.4 million EU trademarks and 700,000 EU designs to cloned UK rights. This means that these new UK comparable trademarks and designs will come into effect on 1 January 2021. EU trademarks and design that register from January 2021 onwards will no longer be protected in the UK.
Please note that Brexit does not directly affect the existing European patent system as the EPO is not an EU agency. This means that all existing European patents that cover the United Kingdom also remain unaffected.
However, any individuals, organisations or businesses that have a pending EU trademark application at the end of the transitional period will have a period of nine months to apply in the United Kingdom for the same protection and back-date those later rights to the date of the earlier filing.
If your designs are disclosed after the end of the transitional period in the UK, they still may be protected through supplementary unregistered design rights. Similar to unregistered Community designs, you can expect your two or three-dimensional designs protected for three years – see the government website or speak to an IP solicitor for full details.
Registered Community Designs
For more information on cross-border copyright arrangements, please refer to the Gov.uk website.
Protect your Intellectual Property checklist
2. Decide which bracket your Intellectual Property falls under
3. Determine whether you need to apply for IP protection or whether your creations fall under automatic protection
4. Consider whether you require legal advice from an Intellectual Property solicitor to help you better understand the legal processes and your rights
5. If you choose to apply for Intellectual Property protection, make sure that you go through the correct processes and prior clearance searches
6. Visit the government website to find current information about the application processes with regards to: Patents, Trademarks and Design Registration.
7. Have the correct documentation prepared to support your application
8. Be clear about the fees involved in the Intellectual Property application processes
9. If you are concerned that Intellectual Property rights will be impacted by Brexit, it is sensible to speak with a qualified lawyer