Written by Samuel O’Toole | June 29, 2022
Intellectual property can be an elusive beast, it is easy to say and impossible to touch, but what exactly is it?
The World Intellectual Property Office defines intellectual property (IP) as “creations of the mind, such as inventions; literary and artistic works; design; and symbols, names and images used in commerce”, but I don’t quite know if that helps me understand it any further. For example, where do trade marks, copyright and designs fit in IP?
The truth is that IP is a blanket umbrella term under which a number of “IP rights” sit, these IP rights are the items that can be licenced out to third parties or enforced through the courts and this is where things get juicy, I have set out four of the most common IP rights below.
Trade marks are a brand of origin, they are helpful for consumers to determine which products they like and which they do not. Without a brand of origin, the world would be very grey and we would be purchasing products without knowing the quality or origin.
Trade marks can be split into two categories, “registered trade marks” and “unregistered trade marks/passing off”. As the name would suggest, registered trade marks require an application to be made and a registration certificate to be granted for the right to be valid. Trademarking your business name is a crucial step in protecting your brand identity. Whereas unregistered trade marks/passing off are an unregistered right meaning the rights arise automatically following the creation of goodwill over a specific part of a business, for example, sales of goods to UK customers under a brand name will likely create goodwill in that brand.
Between the two, registered trade marks are far better for business than relying on passing off: the main problem with passing off is that it is down to the brand owner to demonstrate sales, and other goodwill-generating activities, whereas the beauty of a registered trade mark is that the all-important details are listed on the registration certificate.
Copyright is the right which protects original literary and artistic works, it is an unregistered right meaning that it arises automatically upon the creation of a work. Copyright is very useful as, as the name suggests, it is a right to prevent copying for example if someone stole your photos. However, like everything it has its down-side, copyright requires a work to have been copied in order for there to be any infringement – as such if a third party merely takes inspiration from you work it may not be an infringement, further copyright will also not protect ideas or concepts. As copyright is an unregistered right and in the EU and UK there is no central database of copyright, it is very important to keep a record of your creative process in case you ever need to prove you are the creator.
As with trade marks, there are two types of design rights, “registered design rights” and “unregistered design rights” and they protect functional objects, such as a new furniture design. Registered design rights need an application to be made to an Intellectual Property Office and a certificate granted for the right to exist, in fact, registered design rights are the most cost-effective forms of registered IP. On the other hand, unregistered design rights do not need any application to be made as they will arise upon the creation of the design.
Again, between the two, registered design rights are the way to go and for one clear reason: registered design rights do not require any copying to have taken place, the existence of the design right on the register means that regardless of whether a third party has seen your design, if they produce something identical or very similar it will likely be an infringement. Unregistered design rights work in a similar way to copyright in that they require a third party to have seen and copied your design.
Patents protect inventions, these can be new products or processes. Patents require an application to be made to an Intellectual Property Office and they undergo a substantial examination before being granted. It can be very tricky to obtain a granted patent due to this as an examiner will, amongst others, look through all “prior art” to determine whether the invention has been disclosed to the public prior to the application – as such with patents its always very important to keep the invention confidential until the patent application has been filed.
At Briffa we specialise in IP and enjoy discussing it, if you are a business or individual that wants to get to grips with your IP or understand more about how it can help you, then why not arrange a free consultation today.
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