Intellectual property
posted 30th November 2020
Intellectual property refers to intangible property that is capable of being protected by law. Intellectual property rights (IPR) prevent others from exploiting and benefitting from the original, creative works and inventions developed by you or your business, and enables your business to sell or licence them. Whether you are starting up as a new business or are well established, considering your rights and protecting your work is imperative. There are 6 types of intellectual property that shall be outlined in this article.
If you wish to protect your business reputation, consider the following protections:
Trademarks
A trademark is a sign that distinguishes your business' goods or services from another. Signs can include words, a badge of origin, sounds, colours, gestures and moving digital images. After registering a trademark, your rights in the sign shall arise automatically and will last for a period of 10 years, however, they must remain in use and retain the ability to distinguish the goods/services. The rights in your mark can be renewed indefinitely.
Passing off
Passing off is governed by the law of tort and protects your business' goodwill and reputation. This type of intellectual property arises automatically, lasts indefinitely and is often used as an additional claim to trademark infringement. To establish passing off a claim, you must establish (1) a reputation or goodwill in your goods/mark, which distinguishes it from others, (2) a misrepresentation from the other party which has led a customer (or potential customer) to believe that their goods/mark belongs to your business, and (3) this misrepresentation must be shown to have damaged your goodwill or reputation.
If you wish to protect creative expression and design, consider the following protections:
Copyright
Copyright is the right to prevent the unauthorised copying of your work. 'Work' relates to some form of creative output, such as classical works (musical and artistic works for example) and entrepreneurial works (films and computer programs for example). This type of intellectual property also arises automatically, however, the owner and the duration period varies based on the work.
Industrial designs
This type of IPR protects the way things look, i.e. the shape and appearance of an article. Unregistered design rights arise automatically and protect the internal and external shape of all or part of a product. However, you will need to apply for registered design rights to protect the visible, external appearance of all or part of your product. Protection for registered design rights last for 5 years and are renewable for a maximum of 25 years. Unregistered design rights are protected for 15 years from the end of the calendar year in which the product was created, or 10 years from being made available for sale/hire.
If you wish to protect inventions and know-how, consider the following protections:
Patents
A patent protects your inventions and allows you to decide if and how the invention can be used by others. From the date of filing, a patent lasts for 20 years. Once filed, the technical information about the invention becomes publically available and you can control whether the invention can be commercially made or used by others. It is worth noting that protection is granted to the first to file, not the first to invent and it must be possible to make the product or carry out the process, i.e. the invention must not be artistic, creative or abstract. The application process takes approximately 2 years which is included in the 20 year protection period.
Confidential information/Trade secrets
Confidential information is a common law right that arises automatically and lasts indefinitely. Although it can be implied that information is confidential, it would be worth implementing a non-disclosure agreement and/or confidentiality clauses within your contracts/agreements to guarantee you protection.
If you believe you may have some intellectual property that needs protecting, or you are concerned about any of your business' IPRs that may have been infringed, please contact the commercial team here at Greenaway Scott for a confidential chat.
The information contained in this article is for information purposes only and is not intended to constitute legal advice. If you require further information our commercial team would be more than happy to assist you. Please contact us at commercial@greeenawayscott.com or call us on 029 2009 5500 to speak to one of our team.
