A Beginner’s Guide to Types of Intellectual Property

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A Beginner’s Guide to Types of Intellectual Property

January 27, 2015 Brand Protection Intellectual Property Media Law 0

Intellectual property (or IP for short) refers to creative works which can be treated as assets or physical property.

There are four main areas of IP rights. These include: Copyright, Trademarks, Design Rights and Patents.

1. Copyright

Copyright is an automatic right that applies to works that are recorded in some physical form.

Copyright automatically exists in items such as literary (books, web content), artistic, musical and dramatic works together with sound recordings, films and typographical arrangements.

The author of these diverse types of work is given specific rights to protect their creations, including: prohibition on certain unauthorised actions, and the ability to take legal action against instances of infringement or plagiarism.

In the UK, copyright law is enshrined in statute and the Copyright, Designs and Patents Act 1988 is the principal legislation covering copyright and general IP rights in the United Kingdom.

As copyright is very much an “international” right, whilst domestic copyright law details will vary, the Berne Convention lays down a common framework and agreement between nations in respect to IP rights.

Copyright is an automatic international right, and whilst there are private registration services who provide verifiable evidence of copyright ownership, this is not necessary and proof of authorship, authenticity and the date and time of the creation helps a creator to prove and protect their rights worldwide.

2. Trademarks

A trademark can be a name, word, slogan, symbol, design or other unique device that identifies a product or an organisation.

In the UK, in order to be granted trademark protection, registration is required at the Intellectual Property Office. Depending upon whether a trademark is challenged (together with the strength of the challenger’s claim), a trademark application can take beween 6 and 24 months to be processed.

Registering in countries such as the UK and US will protect your mark in that country only, but within the European Union, it is now possible to apply for a Community Trade Mark (CTM) which covers the mark in all EU countries.

There is also the Madrid System an international “one stop solution” for registering and managing marks worldwide, offering a unique facility to submit trademark applications to many countries at the same time.

Registered trademarks may be identified by the ‘®’ symbol. (it is illegal to use the ® symbol or state that the trademark is registered until the trademark has in fact been registered).

The “TM” symbol may be used alongside any trade mark, registered or unregistered.  In the UK, the “TM” symbol has no legal meaning or value – so you’re free to use it as you wish.

In the US there is also a differentiation between marks used for products or services, with a classification called service-marks used for services, though they in fact receive the same legal protection as trademarks.

Unregistered trade marks are still trade marks – i.e. they still distinguish one business’s goods/services from those of another – but they don’t satisfy the criteria required to become registered.  (Or perhaps the owners haven’t sought to register them.)

There is no requirement to register a trade mark, although the benefits of doing so are clear. When you register your trademark you will be able to:

  • take legal action against anyone who uses your brand without your permission, including counterfeiters
  • put the ® symbol next to your brand – to show that it’s yours and warn others against using it
  • sell and license your brand

3. Patents

Patents apply to industrial processes and inventions, and protect against the unauthorised implementation of the invention.

Patents are grants made by national governments that give the creator of an invention an exclusive right to use, sell or manufacture the invention.

In a similar manner to trademarks, patents are registered at a national or territorial level with an appointed government body.

The timeframe for Patents to be granted is typically 2 to 3 years.

A professionally drafted patent application in the UK will usually cost between £3,000 and £6,000. Even in a very simple case, it is unlikely that an application of sufficient quality could be filed for less than £2,000.

Once a UK patent application has been filed, there is a one year period before steps have to be taken to continue in the UK and to seek protection in other countries. There are a number of possibilities at that stage, including proceeding in the UK only, filing in overseas countries directly, filing a European Patent Application for Europe and filing an International Patent Application (known as a “PCT” – for “Patent Cooperation Treaty” – application). A PCT application is the most common choice, because (similar to the Madrid System for trademarks) it preserves the option to apply for national patents in all major territories and postpones most of the expense of doing that for another eighteen months.

Below is a summary of the procedures and costs, assuming that a PCT application is filed twelve months after a first UK application. The approximate costs are for a typical case (exclusive of VAT) are:

Start
File UK Patent Application. Usually £3,000 to £5,000.

By 12 months
File PCT (International) Patent Application. Typically £4000 to £5000 depending on how much additional material needs to be included in the application.

About 1 year 6 months
Review International search report and decide whether to proceed with full International Examination. Typically £600 to £1,500 depending on how relevant the documents cited in the search report are.

For an outlay of around £10,000 it is possible to preserve the opportunity to obtain worldwide patent rights for nearly 2 and a half years and get a reliable indication of the scope of the patents that will be achieved.

2 years 6 months
Move from the International to the National Phase in the countries of interest. This is the most significant point in the process in terms of setting current and future levels of expenditure. Costs vary from £5,500 (for proceeding only with European and US patent applications) to £25,000 (for all major markets), possibly more if smaller, sector specific markets are also required.

Not everybody aims for international protection. For some companies just protecting the UK market is enough; taking a UK application from first filing through to grant would typically cost around £6 – 7,000. Others may also seek protection in the USA, but nowhere else, thereby increasing costs by £4,000 – 10,000+.
All of the patents will rely upon the original UK patent application and it is important that the invention is adequately described and its essential features identified in that application. If the overall expense of obtaining patents is not to be wasted, the initial investment in the UK application must be sufficient.

4. Design rights

Designs may be subject to both copyright and design rights and unregistered design rights. They may also be registered in a similar way to patents.

A registered design may be applied for to provide additional cover over and above any design right or copyright protection that may exist in the design. Registered designs are administered internationally by the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) in the EU, the Intellectual Property Office in the UK and in the US as part of the standard patent system via the United States Patent and Trademark Office, where they are treated as ‘design patents’, (as opposed to ‘utility patents’).

The benefit of a registered design is that the design may enjoy prolonged protection from copying, although this protection would only be available in countries or territories where the application was made, up to 25 years protection is available in the UK and EC.

 

 

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