What is intellectual property?

Patents serve to protect new inventions and cover how products work, what they do, and how they do it.

To qualify for patent protection, the invention concerned must be innovative, new, and useful. The commonly used terminology is that the invention must advance the current “state of the art” in the applicable field.

A patent can protect inventions such as machines, processes, production methods, computer hardware, and chemical/biological products and processes for example.

Patent protection is an example of a registered IP right. In other words, the invention is approved and awarded patent status by the UK Intellectual Property Office (IPO) or other international bodies.

Once granted, the protection lasts for 20 years provided that annual renewal fees are paid.

Trademarks essentially exist to protect trading brands. A common example would be a business name, or the name associated with a particular product or service. In this regard, the trademark could be words, logos, or a combination of both.

Trademarks are commonly thought of as a brand, although a brand is more than just a logo for example. A brand is essentially a “promise of an experience” and offers customers an assurance about the nature of the goods or services that they will receive.

A trademark is therefore a crucial element of a brand in that it distinguishes the applicable goods and services between traders who might supply similar or competing goods or services for example.

In other words, a trademark operates as a unique identifier of the goods or services concerned. It therefore follows that over time, goodwill and hence value will accrue to the trademark, such that the brand owner may wish to prevent others from unlawfully using or exploiting such goodwill and value.

Trademarks can be either registered or unregistered. An unregistered trademark provides protection under the common law, but registering a trademark provides enhanced statutory protections by being approved and registered by the IPO or other international bodies.

Once a trademark is registered, the protections lasts for 10 years, but can be renewed thereafter.

Design protects the overall visual appearance of a product, and there are two types of protection in law as follows:

Registered design rights

A registered design is one where the design has been examined and registered by the IPO or other international bodies.

Design registration protects the appearance of the design, and a requirement for registration is that it has a unique and individual character. In other words, the design must have a unique shape, style, or ornamentation to be registered.

Some products do not qualify for registration simply because they do not satisfy the criteria to be considered a design. These are essentially products configured in a manner to achieve a specific function, or purely to fit or attach to something else.

Once registered, the protection can last for 25 years, subject to renewal every 5 years.

Unregistered design rights

Automatic design rights do exist in the UK (UK Unregistered Design Right) and in Europe (Unregistered Community Designs). However, the protection that they offer is much more limited, and enforcement can be problematic.

It is therefore important to carefully consider the potential disadvantages of relying solely on unregistered design rights. This is because if a dispute arises, it will be necessary to prove the existence of rights, and it will be the responsibility of the owner to prove intentional copying, which may not necessarily be straightforward.

Copyright gives its owner the right to exclusively control and exploit their creative works, which could include photographs, literature, music, artistic works, dramatic works, and sound recordings for example.

UK copyright is an automatic right which comes into existence as soon as a qualifying work is created. Therefore, there is no formal registration process which must be followed, and the commonly used terminology is that the right exists from “the moment the ink dries on the page” so to speak.

Trade secrets are often an important part of any business. The law of confidentiality protects trade secrets, but to ensure protection, it is essential to establish that the information is confidential, and that anyone to whom the information is disclosed signs a confidentiality agreement.

If the recipient then unlawfully discloses the information, this is a breach of confidence, and legal action can be taken against them.

In many cases, the owner of IP rights will simply use and exploit the IP rights in their business for their own commercial benefit. However, in other cases, the owner may choose to permit others to exploit the IP rights.

In such a case, the IP owner licences a third party to use the IP rights on agreed commercial terms. In this way, the IP owner can realise an income or revenue stream through the licensing process.

A common example would be where the owner of a successful business grants a franchise of their business and as part of that process grants the franchisee a licence to use certain IP rights, such as a trading name for example.