From an invention and innovative design, to a brand name or business identity, intellectual property can represent potentially valuable commercial assets that need to be legally protected, whether trading on home turf or overseas. Having the right type of intellectual property protection will help you to maintain your competitive edge, preventing people from stealing or imitating these types of valuable assets for their own financial gain.
Whilst the UK provides a high level of legal protection when it comes to intellectual property rights, and effective enforcement mechanisms for infringement of those rights, it’s still important to know what these protections are and the process for putting them in place — and what steps can be taken if your intellectual assets are exploited without your permission.
What are the types of UK intellectual property protection?
In the UK, intellectual property law is designed to grant the creator or owner exclusive rights over their intellectual asset for a specified period of time, in some cases, spanning several decades. This means that for the duration of those rights, you’ll be afforded legal exclusivity over your creation or investment, as well as protection against theft and unauthorised use.
If you’re launching a business or planning to trade in the UK, either as an individual or as a company, the four main types of intellectual property protection include:
Copyright: if you’ve physically produced something of your own creation, such as a piece of writing, music, art, software or web content, under UK law you may be entitled to legal protection by way of copyright. An idea alone isn’t something you can own, where it must be written down or recorded, but provided the work is both original and tangible, UK copyright law can enable you to control the way in which your literary or artistic creation is used. Copyright prevents people from copying your work; from distributing, selling or renting copies of it; and from showing, playing or performing your work in public or on the internet.
Design rights (registered and unregistered): if you’re looking to protect the novel look or appearance of a product, such that it cannot be copied or reproduced by others without your permission, UK design rights may provide you with the legal protection you need. The law on design rights can encompass a product’s unique physical shape, configuration or decoration of the whole or part of an article, provided the design has individual character and creates a different overall impression to any other design on the market. However, a design right doesn’t subsist unless and until it’s been recorded or an article has been made.
Trademarks (registered and unregistered): if you’re looking to protect your brand or business identity, including the name of your product, service or company, UK trademark law is likely to help you. The use of trademarks is a commercially recognised way of indicating origin, distinguishing your goods and services from those of others. This can include words, signs, symbols, designs and even sounds, although not every word, logo or jingle will be afforded legal protection. Your trademark must be distinctive, clearly identifying your goods and services from those of others, but without being too descriptive.
Patents: if you’ve invented something new, that’s not otherwise in the public domain, such as a product, component part or manufacturing process, you may be afforded legal protection under UK patent law. A successfully registered patent can prevent others from either making, using or selling your invention. However, to be patentable, an invention must be more than a simple discovery. It must be new; involve an inventive step, rather than a simple modification of something that already exists; and be capable of industrial application.
How does intellectual property protection arise in the UK?
The nature of your intellectual property will determine your right to legal protection in the UK. You’ll get some types of protection automatically, whilst other intellectual property rights will only arise if you’ve applied to register that right. In some cases, even where some level of protection is provided automatically, to ensure your asset is adequately protected, and your rights are less likely to be infringed, registration will offer the best form of prevention.
In the UK, copyright attracts automatic protection, although the length of copyright depends on the type of work. For example, for original written, dramatic, musical or any other artistic work, this will last the lifetime of the author, plus an extra 70 years following the date of their death, whilst for sound and music recordings, it’s 70 years from the first publication.
A register of copyright works doesn’t exist in the UK but, as a matter of best practice, any original work should still be marked with the copyright symbol ©, the name of the author or creator, and the year of creation. In this way, third parties will be put on notice that the work is copyright protected and, if they’re looking for permission to re-use the work, they can trace the copyright owner. However, whether or not you opt to use these copyright markings, you’ll still receive the full level of copyright protection as an automatic right under UK law.
In the case of design rights and trademarks, these can be either registered or unregistered, although it’s often easier to enforce a registered right in the UK. Registered rights can also provide greater protection than unregistered rights, and be of longer duration.
Unregistered UK design rights arise automatically to protect the shape and configuration of of 3-dimensional objects, but will only last for 10 years after the object was first sold, or 15 years after it was created, whichever occurs the earliest. Under a supplementary unregistered design right, the appearance of a product is protected in the UK for 3 years from the date the design was made public. This can include an objects’ shape, colours, texture, materials and ornamentation. However, these automatic rights are in contrast to the greater protection offered by a registered design, covering each and every aspect of an object, which can be renewed every 5 years, for a period of up to 25 years. Once registered, you can also display your registration number on your design to deter others from copying or stealing it, whilst the owner of an unregistered design may face difficulties proving when their design was created.
In the context of unregistered trademarks, common law rights can be created simply by trading under a certain mark or through use of a brand over time. However, whilst the term of protection can last indefinitely in this way, this doesn’t prevent another person from registering that mark and, more importantly, preventing you from using it. Once a valid UK registration has been obtained, the trademark registration symbol ® can be used to warn others against imitation and unauthorised use. UK trademark registrations can also be renewed every 10 years and, provided they’re used, can last for as long as required.
Finally, in the case of patents, protection will only be given in the UK if a successful application is made for an invention. You can still put your invention into practice without the grant of a patent, although you’ll not be able to prevent others from using your idea once an unprotected invention has been made public. In the process of inventing either a new product, component part or manufacturing process, various intellectual property rights may automatically arise, for example, copyright over drawings. Still, the best protection lies in patented rights. Once registered, patents can be renewed for up to 20 years, giving you the right to take enforcement action against anyone who makes, uses or sells your invention without your permission.
What is the application process for intellectual property protection?
The Intellectual Property Office (IPO) is the official UK body responsible for dealing with applications for intellectual property rights, including designs, trademarks and patents. The IPO website contains comprehensive information on UK law and practice, although when it comes to making an application to register intellectual property rights, it’s always best to seek expert advice and representation from a registered design, trademark or patent specialist.
Prior to making an application, extensive clearance searches should be conducted — preferably by an experienced attorney — to see if there are any earlier creators or owners that may object to your application, or whose rights you could be infringing by using, for example, a particular design, brand or invention. In some cases, you may need to find ways to work around the existing rights of your competitors.
You’ll also need to ensure that you meet the UK legal requirements for a design, trademark or patent prior to submitting an application. It may even be the case that more than one type of protection could be linked to a single product, for example, you could register a product’s name and logo as a trademark; protect it’s unique shape as a registered design; patent a completely new working part; and use copyright to protect any drawings of the product.
For single or multiple registrations alike, the application process can be complex. For example, when you apply to register a trademark in the UK, you must specify the goods and/or services that you intend to use the brand for. Organised into multiple different classes, with fees charged on a ‘per class’ basis, expert advice on trademark classification can prove to be essential. Your prospects of obtaining a useful patent are also significantly greater if you use an expert, where a patent specification is a legal document requiring specialist skills to draft.
Overall, applying for intellectual property rights can be lengthy and legally challenging, often compounded by objections raised by competitors with similar designs, brands or inventions. Whilst the registration process for designs and trademarks can be dealt with in a matter of weeks, and for patents it can take up to 5 years, this assumes no one opposes your application. Where opposition is raised, you’ll need to be able to respond appropriately and persuasively.
Enforcing intellectual property rights
In the UK, it’s a potential infringement of your intellectual property rights if someone tries to steal, copy, reproduce, sell or otherwise use your intellectual asset without your permission. This means that you may be able to take civil action, claiming injunctive relief to prevent any further misuse of your creation, and claiming damages to compensate you for infringing your rights. The unauthorised use of intellectual property can also amount to a criminal offence.
However, as with applications to protect intellectual property rights, litigation to prevent infringement of those rights can also be complex, so legal advice should always be sought as to the potential risks involved. Your legal advisor can also help you to explore the possibility of other more cost-effective solutions, such as negotiating a suitable licensing arrangement in which third parties have permission to use your creation on mutually agreeable terms.
With the right advice — from securing intellectual property protection in the first place, to preventing any infringement of your rights, where necessary — you can ensure that you find the best way to protect and enforce any intellectual property rights whilst trading in the UK.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
