What are Intellectual Property rights?
The legal rights that are generally described as making up Intellectual Property law are in relation to:
- Patents - monopoly rights in a product or process that has not already been disclosed to the public
- Trademarks - registered business goodwill and reputation giving the exclusive right to use a word or logo (device) to distinguish goods and services
- Design right - registered or unregistered
- Copyright - the expression of an idea in a material form such as literary, dramatic, musical and artistic works
- Database right - this is a right that attaches to a collection of data or other material where substantial investment has been made to collate the data or material
What makes Intellectual Property rights valuable?
Most of the rights are property and are able to be owned, licensed, assigned or used by the owner of them. In addition, the rights may confer a monopoly upon the owner who will be able to pursue those who infringe their rights. The value of some trademarks is practically immeasurable - consider the owners of 'Coca Cola', Mercedes, Dyson for example.
Why do some people use 'TM' after logos or words?
TM is often used in relation to unregistered trademarks. A trademark application can be a lengthy process and will take at least three months following publication in the trademarks journal (aside from the time it takes for the trademarks registry to accept an application). When an application has succeeded the trademark owner would then replace the TM symbol with the ® symbol. TM merely indicates that a trademark is claimed not that the trade mark is registered.
How do I make a trademark application?
You apply to the trademark registry on a standard form and include a fee. The basic cost of an application can be as little as £170 but you pay an additional fee for each class you wish to register your mark in. There are forty five classes in which trademarks can be registered. After the application has been examined, the trademark is then published in the trademark journal. A period of three months is allowed for objections to be made. If none are received the trademark is passed for registration and a certificate is issued.
Can I object to a registered trademark?
It is possible to make observations or oppose an application for a trademark. Once an application has been registered, it is possible to apply for a trademark to be rectified, revoked or invalidated but except in exceptional circumstances this is not a very common occurrence.
Can I apply to register a trademark myself?
You can but we would always advise that you seek professional assistance before doing so. Solicitors and Trade Mark Attorneys have a wider knowledge and understanding of the issues and can draft applications for registration on your behalf. Additionally, there are many national firms that can assist you in preparing and filing an application. The Trade Mark Protection Society exists to provide advice to companies seeking to create, register and enforce trademarks. The Patent Office website is an invaluable source of information if you are considering making an application.
I have a trade secret that I want to protect...
The first thing that you need to do, is ensure that your trade secret remains a trade secret. The law of confidentiality assists you because where only a few people know the information that you claim is a trade secret, disclosure of that confidence would be a breach of confidentiality. The best way to keep a trade secret is to strictly limit the people who know the information - Microsoft have different levels of access to their source code for example. Secondly, you should ensure that the people who have the information realise that they are under and bound by a duty of confidentiality. Prevention of disclosure is preferable to suing for breach. Further, you may be able to formally protect the information by obtaining a patent
Can I patent a product that I have designed and already started selling?
Probably not. Patents are granted as a monopoly right in exchange for their publication. If you have already started selling the product then the know-how is already on public display and considered to be 'public knowledge'. You should always seek advice as soon as you think that you may have developed a product or process that incorporates an invention since by obtaining the protection of a patent, no one else will be able to sell, manufacture or use the product or process.
I've got an idea - can I protect it?
Ideas in their own right cannot be protected. The content of the idea can be protected when it is given some form. So, for example, if you think of a new way in which to collate information in a database then the idea is not in itself able to be protected. Once you begin collating the information then database right will exist where you have made a substantial investment in the collation of the information. Additionally, copyright will exist in the information that you have collated. Similarly with patents, in order to obtain a patent you would need to show that there has been a new invention that contains an inventive step and is capable of industrial application and is not within a stated exclusion. The idea of an invention is not capable of being a patent. The invention is.
At the front of book you often see 'moral rights' mentioned - what are they?
An author has the moral right to be identified as the author of a work The author also has the right to prevent the work being distorted, mutilated or otherwise treated in a way which is prejudicial to the honour and reputation of the author. Nor can any work be attributed to a person who is not the author (or director if a film). These rights are independent of the copyright in the works.