What Are Intellectual Property Rights
As the name suggests, Intellectual Property (“IP”) refers to the ownership of and rights to ideas and creations of the mind. IP comprises the establishment and protection of a wide range of rights resulting from the ownership of copyright, trade marks, patents and design rights.
IP may be of great value to a range of entities from private individuals, freelance writers and small business proprietors to national and multi-national companies. Over time, the value of an entity’s IP (such as brands, logos and trade marks) may increase as the entity’s goodwill (the intangible asset of reputation) increases.
Most IP requires some form of registration and the validity of the IP may differ depending on the type of right for which protection is sought. IP rights have different time spans of validity and some may be renewed for different lengths of time. There is often some confusion in the public domain as to the nature of different IP rights and in use of terms such as copyright and trade marks, especially.
Trade Marks are registerable words and logos which distinguish the goods and services of one entity from those of another. Well known trade mark words include names such as COCA COLA, FORD and GUCCI while well known logo marks include the green LAND ROVER oval device, the large yellow MACDONALDS “M” device and the square ORANGE device. However, the registration and ownership of trade marks is not only for global giants such as Coca Cola and Macdonalds: small business proprietors (such as online traders, pub owners or beauty salons) may do well to register trade marks for their businesses, particularly with greater expansion as they may want to prevent competitor businesses from possibly using their marks and ideas without permission, and thereby riding on the good reputation of the original business’ trade marks. A good and growing reputation in a trade mark is worth protecting by registering the mark.
In the United Kingdom, one can apply for registration of a UK trade mark (which affords protection of the mark in the UK) and/ or a Community Trade Mark (“CTM” – which affords protection in all countries of the European Union). UK trade marks are registered at the Intellectual Property Office and CTM’s can be applied for at the Office for Harmonisation in the Internal Market.
Trade Marks that Can and Cannot be Registered
The Trade Marks Act 1994 stipulates which marks can and cannot be registered. In order for a trade mark to be registerable, it must be distinctive. In other words, it must be able to distinguish the goods or services of one entity from that of another so that there can be no confusion in the mind of the public as to the source of the goods or services. In other words, the mark, word or sign for which trade mark protection is being sought must be unique to a particular entity in relation to the nature of his business. Confusing similarities with the mark of another must be avoided. Trade marks that cannot be registered include:
- Trade marks that are already in existence
- Marks that are not distinctive or are deceptive (or confusingly similar to existing marks)
- Offensive marks
- Illegal marks
- Descriptive names or names which show the purpose of the goods or indicate where the goods or services originate
- Marks which have acquired a generic use within a particular trade or industry
Rights Afforded by Registration, Cost and Duration
There are various international, numbered classes of trade marks for the various possible goods and services. For example, vehicle parts and related services are registered under Class 12. The cost of registration of a trade mark in the UK is £200 (plus £50 per Class) – at the time of the drafting hereof. A trade mark owner has the exclusive right to use the registered mark in trade in the UK (and EU, depending on registration) and the law affords 10 years exclusivity and protection for the mark, and the registered mark is renewable after 10 years at the same cost as registration.
Means of Protection and Enforcement of Rights
A wide range of enforcement is afforded the trade mark owner, including delivery up and destruction of infringing goods or signage, search orders, disclosure orders, payment of damages and injunctions, to name a few.
Domain Name Infringement
A domain name is simply a website address. Some domain name traders (also known as “cyber squatters”) often register numerous domain names containing well-known registered trade marks with the intention of selling these domain names to the rightful trade mark owners for inflated profit. Unauthorised and non-descriptive registration and use of a registered trade mark (belonging to another entity) in a domain name or email address amounts to trade mark infringement.
Copyright is probably the most common IP right. We create and encounter copyright daily. The creation of copyright is governed by the Copyright, Designs and Patents Act 1998 and provides for rights in the creation of literary, dramatic, musical, artistic, visual, audiovisual, broadcasts and electronic works.
Copyright cannot be registered but subsists in the mere creation of the work by the author, artist, film maker, musician, programmer, publisher, broadcaster, or photographer, as the case may be. Therefore, even to the drafter of a personal letter is granted automatic copyright protection by law. For a work to enjoy copyright protection is must be an original work.
The Extent of Copyright Protection
Usually, the creator of the work is the automatic copyright owner and the copyright owner has the exclusive right to copy the work, to reproduce it, to adapt it, to issue it to the public; thus to publish it, show, display, broadcast, or play it in public.
There are exceptions to the rule that only the copyright owner may exercise the above rights. Mainstream exceptions to these include:
- Where a work is created by an employee, copyright belongs to the employer
- Where a work has been commissioned, copyright belongs to the commissioner
- Where permission or a licence has been granted to another party
- Making backup copies (e.g. of a computer programme) for private use
- Works copied for research or private study
- Copies made for educational purposes
- Quoting for media creations
- Parliamentary or judicial proceedings
- Fair dealing for criticism, review or news reporting
For more information on:
- The Purpose of Registering a Patent
- Inventions that Can and Cannot be Patented
- Legislation also provides that the following cannot be patented:
- Design Rights
- Registration of a Design Right