Can You Really Own an Idea? The IP Myths That Won’t Go Away

Intellectual Property is said to protect “creations of the mind”. However, despite popular belief, it doesn’t protect ideas (more on this below).

In this blog, we explore (and bust) the common IP myths that individuals and companies often fall foul of, so that you don’t fall into the same trap.

Myth 1: I can own an idea.

In short: no you can’t. In order to be protectable, IP must be recorded in a tangible form, for example inventions, works, designs and names. You cannot protect an idea per se; there has to be a tangible representation of the IP in which the right vests.

So, if you have a good idea that you don’t think anyone else has thought of, keep it to yourself until you have developed the idea into a physical work, product or visual representation that is protectable as an IP right.

In practice, to minimise the risk of someone stealing your idea, you may wish to enter into confidentiality agreements and NDAs with other parties. This provides some protection for your idea before you have had a chance to develop it into a tangible IP right, and reduces the risk of a potential business partner taking your idea and running with it.

Myth 2: If a brand name is followed by the TM symbol, the name is a registered trade mark.

No, this is not correct. If a brand name is followed by the TM symbol (™), it means it is being used as a trade mark but it is not a registered trade mark. This means that whilst the brand owner intends the mark to be used as a trade mark, the name is not registered on the trade marks register (and therefore, the brand owner does not own any registered rights in relation to the name).

However, please be aware that if the name is followed by the R symbol (®), then the mark is a registered trade mark, and the brand owner does own registered rights in relation to the name.

Myth 3: If there is no identical match for my brand name on the trade marks register, I am free to use the name.

The answer to this is not necessarily, no. Existing trade marks that are similar (rather than identical) to your brand name can still be enforced against you and used to prevent you from using a particular name. This is because trade mark protection extends to similar marks used in relation to similar or identical goods and services, not just identical marks.

Furthermore, brand owners may have unregistered (i.e. passing off) rights which are not apparent from a search of the trade marks register. Just because the brand owner does not own a trade mark on the trade marks register, does not mean that they do not hold any rights in relation to the name. They may have developed goodwill/a reputation in the name over time, which they could potentially use to stop you from using a similar brand name, even if they do not own a registered trade mark.

Myth 4: Once I own a trade mark registration, I don’t need to take any further action to protect my trade mark.

This is not true; in the UK, just because you own a trade mark registration, this does not mean that parties are automatically prevented from using similar names to yours. If you want to enforce your trade mark rights, the onus is on you to do so.

The position differs in certain jurisdictions, for example notably the USA, in which the US trade marks office will unilaterally reject trade mark applications if they deem them to be too similar to existing registered trade marks (provided the goods/services are identical or similar).

Myth 5: If I own a trade mark registration, it is protected worldwide.

The answer to this is unfortunately not; if you wish to obtain trade mark protection in a particular country, you will need to apply for rights in that specific jurisdiction. There is a system called the Madrid Protocol (administered by the World Intellectual Property Organization or WIPO) which can help to make this process easier, but even if you apply for a WIPO trade mark, you will still need to designate specific countries in your application (each of which will involve a separate cost and potentially different filing requirements depending on the jurisdiction).

It is worth bearing in mind that it is always advisable to protect your brand in your countries of interest as soon as you are able to, to avoid the problematic situation where your brand name is already in use in another country by another party, and as a result you are unable to use or register your brand name in that country.

Myth 6: I need to register copyright in order to protect my work.

Unlike trade mark protection, for which you need to register your rights, copyright is completely free and subsists automatically in qualifying works. This is useful because it means your copyright work is automatically protected without the need to invest large sums in protecting your IP. On the flip side, given there is no central register of copyright, it can be more difficult to enforce and commercialise your copyright. We would recommend keeping an up-to-date record of your copyright protection, including any commercial agreements that you enter into which use or license your copyright.

We would also flag that in some jurisdictions, for example the USA and China, it is possible to register your copyright, and so it may be a relevant consideration for you to explore if you are looking to expand into those countries.

Myth 7: If I change seven elements of my design, it cannot infringe an existing design.

This is not true, unfortunately. Design infringement is not assessed quantitatively, but rather an assessment is made of the designs as a whole, and if the designs are considered to be too similar (the test differs depending on the type of design, as clarified below), infringement may be found.

The test for infringement depends on whether we are dealing with registered designs, or unregistered designs. For registered design infringement, a design will infringe an earlier design if it does not produce a different overall impression on the informed user of the design when compared with the earlier design. For unregistered design infringement, a design will infringe an earlier design if the design copies and substantially reproduces the earlier design.

If you need IP advice, get in touch with our legal team at info@briffa.com or through our website form. Our IP experts are here to help.