• Intellectual property
  • December 16, 2020

Simple Guide Protecting Your Intellectual Property

By Lawbite Team

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When you create something that is unique, you may want to consider protecting it legally to prevent people from copying or stealing it. Without legal protection, there is the risk that someone else can claim your work as their own and profit from it without your consent. 

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


Copyright

This form of intellectual property protection applies to you automatically, which means that you do not have to pay a fee or complete an application.

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

Another form of automatic protection, a design right that guarantees the protection of your 3D design in the UK for 10 years after selling or 15 years after creation, whichever comes first (or for a more limited 3 years in the EU from first unveiling the design).

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 


Trademark

A trademark can be registered for specific services or goods. You may be able to register a trademark where a mark already exists, as long as the trademark isn’t in the same classes/field.

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. 

Registered Design

A design can be registered to prevent it from being copied or stolen. This can include a number of factors of your design including the appearance, shape, decoration or configuration of the design. 

Patent

If you have invented something, you may be able to patent it to protect it. By attaining a patent, you can legally take action against anyone who replicates your invention or profits from it without permission.

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

When registering a design, you will first need to check whether your design is unique to the UK, EU or Worldwide. You can do this yourself or use the support of an IP solicitor, as searching can be demanding and mistakes can be made. 

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 

If you are applying for a patent, you will first need to determine whether it will be right for your business. The patenting application process can be difficult and expensive, so it is important to make sure that a patent is something you truly need. The fact that the patent must be disclosed as part of the application process should also be a key consideration for any business.

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 

If you choose to register your trademark, you can expect a faster application process compared to patenting an invention. The registration process takes around 4-6 months if there are no objections or disputes. Trademark protection can last for a decade. However, please remember that there are different processes to complete before you can register a trademark in the UK, EU and internationally.

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.

Patents 

You can apply for European patents through the British government or directly with the European Patent Office (EPO). If approved, this will allow you to protect your patent in over 30 countries in Europe by using the non-EU European Patent Convention (EPC)
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. 

EU Trademarks

While the UK will remain a part of the EU Trade Mark (EUTM) system until the end of the transition period on 31 December 2020, the IPO will not create comparable UK trade mark rights unless an EU trademark has registered before the end of 2020. 
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. 

Unregistered Designs

If you have any unregistered designs, under the Withdrawal Agreement you will benefit from automatic protection from copying in both the EU and UK for three years. It will fall under the protection of unregistered Community designs and will remain protected in the UK even if these designs are created before the end of the transitional period.
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

Registered Community designs or RCD will continue to extend to the UK while the country remains a part of the EU registered community design system for the duration of the transitional period. Comparable UK designs will not be created during this time and will only be produced by the end of the transitional period in accordance with the 

Withdrawal Agreement. 

If you are an individual, organisation or business that has a pending Community design application at the end of the transition period, you will be granted an additional period of nine months. During this period, you will be able to apply within the UK for similar protection and back-date those later rights to the date of the earlier filing.

Copyright 

In order to protect copyrighted material between the UK and EU, there are international treaties in place. This, however, lies outside of the UK government’s relationship with the European Union so will not be addressed in the Withdrawal Agreement.

For more information on cross-border copyright arrangements, please refer to the Gov.uk website. 

Watch our Intellectual Property Masterclass here.

Protect your Intellectual Property checklist 

1. Ensure that your trademark is distinctive and your design is truly unique and has exclusively been created by you
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


In closing

Nothing in this article constitutes legal advice on which you should rely. The article is provided for general information purposes only. Professional legal advice should always be sought before taking any action relating to or relying on the content of this article. Our Platform Terms of Use apply to this article.



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