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Copyright, trademarks and intellectual property

As many as one in four smaller businesses believe their intellectual property (IP) has been violated. Here’s how you can help to protect your IP and avoid infringing the IP of others.

What is intellectual property (IP)?

Intellectual property (IP) is something original you create. Just having an idea doesn’t mean that the idea becomes IP. But things you create from that idea count as IP, for example:

  • Things you invent
  • Things you make / produce
  • Things you write
  • The names you give products or brands
  • The design or look of things you invent, make, or produce.

The following are ways that IP can be protected:

  • Copyright
  • Trademarks
  • Patents
  • Design rights
  • Resisted designs. 

You can arrange for multiple IP protections for a single object. A good example of this is the Dyson vacuum cleaner, which has patent, registered design and trademark protection.

How does design right work?

Design right automatically applies to three-dimensional objects, but doesn’t cover two dimensional products like textiles. Design right covers a product’s shape and its configuration – the way the different parts are arranged. 

Design right lasts for:

  • 15 years in the UK
  • Three years in the EU (usually). 

Design right can be difficult to establish, so to help prove it, you can lodge copies of a design with a solicitor or bank. You can let others use your design by granting a licence of right. However, in the final five years of your automatic license period you have to provide a license to someone who asks for it. 

How do registered designs work?

The advantages of registering a design include that it offers more of a deterrent against copying than the automatic design right. It also applies to two-dimensional as well as three-dimensional products. Registration lasts for 25 years and it makes it easier to sell or licence the product.

If I register a design what does it cover?

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Registering a design covers its appearance – this includes its shape, texture, materials, decoration, and configuration. It applies to a whole item and parts of it, e.g. a handle or lid. 

To be eligible for registration, a design needs to be: original; not to include protected emblems or flags (e.g. the royal coat of arms or the Olympic symbol); and not be offensive (e.g. it cannot have pornographic images or offensive words). To ensure that your design is original you need to check on the design registers or for a small fee you request a search from the Intellectual Properly Office (IPO). 

To check that your design is unique and therefore eligible for registration, check the following registers:

Or you can request a search by the Intellectual Property Office

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How do I register a design?

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To register a design you need to send an application form, together with drawings and the required payment, to the Intellectual Property Office.

Allow one month for your application to be examined. Once a design is registered it becomes public. If you want to delay this, for example if you need more development time, you can defer your registration for up to 12 months. At the time of writing, the fee for applying to register a design is £60. This is reduced to £40 if you want a deferred registration.

You need to renew your design registration every five years. 

To apply to register a design, go to the Apply to register a design page of GOV.UK. 

 

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How does trademarking work?

A trade mark is a symbol, shape, word, group of words, or combination of these, which is used to distinguish a brand from others. A company name can be used as a trade mark, but registering a company doesn’t automatically provide trade mark protection – the name must be specifically registered as a trade mark as well.

The advantages of having a registered trademark to protect your brand include the right to put the ® symbol next to it, which warns others against using it. It also makes it easier to take legal action against  counterfeiters, and to sell and licence the brand.

Trade marks mustn’t be misleading, nor can they describe the goods or services they relate to, e.g ‘Perfect Plumbing’. They can’t be offensive (e.g contain pornographic images or offensive words). They can’t be three-dimensional, nor be too common in your line of trade. Nor can they based on symbols of state, such as flags.

If you decide to use an unregistered trade mark, you first need to check that the same or similar mark has not already been registered for the same or similar products or services. You also need to check this if you decide to register a trade mark, to do this you need to search the trade marks database. To check any trade mark applications made in the last week, go to the Intellectual Property Office’s online journal.

Once you’ve checked that the trade mark you want to register is available, you need to send an application, with the required fee (£170 at the time of writing). 

You have to pay an additional £50 for each additional class you want to register for. There are various classes of goods and services as you may fit into more than one, e.g a business may fit into Class 2 (paints, varnishes, etc) and also into Class 4 (industrial oils, etc).

Allow four months in total for your application. You’ll get feedback  within 20 days of submitting your application about whether it meets the requirements. If it does, it will be published in the online trade marks journal for two months. If there are no objections, or once any objections are resolved, you’ll get a certificate confirming your trademark has been registered.

Your trade mark registration is valid for 10 years, after which you can renew it.

For more information on UK trade marks, go to the Trade marks: protect your brand page of GOV.UK

If you want your trade mark to be registered outside this country you need to apply for a Community Trade Mark for Europe, or a Madrid protocol registration for the rest of the world.

 

How do patents work?

Here are key facts about patents.

If you invent something with lots of commercial potential you should consider getting a patent to protect your exclusive right to use it. You can patent a product, a process, or equipment / tools.

The advantage of holding a patent is that without your permission, no-one else can legally manufacture, sell, or import your invention in the countries where you hold the patent, for a fixed period of time (20 years in the UK). This makes it potentially lucrative for you, as you can sell or license the patent.

A disadvantage of applying for a patent is that it can be time-consuming – up to five years. Also, the application process involves making some technical information publically available, so your invention is not a total secret. If a patent is granted and someone infringes it you may need to get into an expensive legal process to defend it.

Applying for a patent

Application can be a complicated process – 95% of successful applicants hire patent experts to help them. On average, applications cost £4,000. If you’re successful you need to renew the patent every year. More information can be found in the panels below.

Starting the process

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To get a patent an invention needs to be genuinely new, not just a basic modification to something existing. It also needs to be something that can be used or made. It cannot be a way of doing business, an artistic work, a theory or discovery, nor a way of presenting information.

If you do decide you want to go ahead and apply for a patent, you need to start by checking for similar patents. You then prepare your application, including descriptions of the invention, legal statements, a summary and drawings, before submitting it to the Intellectual Property Office (IPO), along with an application fee. 

For protection outside of the UK you can file an application with the European Patent Office and/or the Patent Cooperation Treaty, which handles patent protection for 140 countries. You can also apply to patent offices in individual countries.

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Where to go for advice

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It’s important to keep your invention under wraps before you launch it. You may be approached by various people in the course of a patent application, who offer to help you through the process or promote your invention.

Take advice from a solicitor or patent attorney before talking to anyone, and certainly make sure any conversations are covered by an non-disclosure agreement (NDA).

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What sort of intellectual property issues should I be aware of regarding my business’s website?

Because it’s so easy to get hold of images on the web, some of us assume that we’re allowed to use them on our website. In most cases, someone will own the copyright on a photograph or illustration, so you can’t use it without permission.

If you come across an image that’s royalty-free, this doesn’t mean that you can just go ahead and use it. The “free” in the term means that the image can be used without needing to pay additional royalties, but normally you still have to pay a one-off fee to obtain the right to use it on your website.

Another issue that sometimes occurs with websites concerns the design. If you’ve used an external contractor or agency to create your site, ensure that they assign you all IP rights for the site – get this in writing.  

Quiz: Which of the following types of IP are protected automatically in the UK?

You need to apply to protect some types of intellectual property, but other types are a protected automatically.  Which of the following types of IP are protected automatically in the UK? Select all that apply. 

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