A Brief Introduction to Intellectual Property for Private Inventors and Small Businesses
Patents
Protecting Innovation & New Enterprise
Trademarks
Protecting the Good Name of a Business and More
Designs
Protecting Appearance
Copyright
At Last: Something That's Free
Patents
Protecting Innovation & New Enterprise
Trademarks
Protecting the Good Name of a Business and More
Designs
Protecting Appearance
Copyright
At Last: Something That's Free
PATENTS
Many a successful new business is based on exploiting innovation - a new or improved product or a new and improved way of doing something - but if it’s not protected that innovation is free for any competitor to copy. Several of our Clients have appeared on the "Dragons Den" television programme, but only after we had taken steps to protect their Inventions by filing Patent Applications.
Patents aim to protect the underlying big idea behind any innovation. A strong Patent can dominate an industry for years to come (up to 20 years). Patents are monopoly rights - any product or process within the scope of the Patent needs a License from the Patentee or it can be stopped in Court, even if entirely independently thought up.
In general there are three requirements for an invention to be patentable:
Patent documents need to be carefully drafted. An Application must be filed before any details are disclosed to outsiders other than in confidence. Private Inventors and Small Businesses should seek early professional advice.
M.J.P. Deans handles Patent Applications directly in Britain and at the European Patent Office, and through Associates in other countries.
Valuable though Patents undoubtedly are, don’t forget the other ways of protecting Intellectual Property.
* Design Registration can protect the external appearance of a product in a similar way to Patents, as explained below.
* Copyright (& Design Right in Britain and elsewhere in Europe) - especially as they are entirely free - may also provide useful protection, again as explained below.
* In many cases a Trading Name or the Product Name or Brand is important and should be protected as a Trademark.
TRADEMARKS
What makes people associate a particular product or service uniquely with its manufacturer or supplier? Whatever it may be... It’s a Trademark.
It may be a brand-name, a logo, one or more letters or numbers, the shape of the product or of its container, sometimes a colour, a sound (a Jingle in a TV advert) or even a smell - provided, in each case, that the Trademark serves to distinguish one source for that product or service (whether the manufacturer, retailer or service provider) from all other sources for similar products or services.
Whatever it is, it may be the single most important asset of a business. Guarded, it can bring a continuous stream of custom to a business virtually for ever. Trademarks, once Registered, can be repeatedly renewed. Trademark No. 1 - the Bass red triangle - is still registered in Britain after well over a century.
In Britain and other Common Law countries, rights can arise in a Trademark simply by use without a Registration. These Common Law Rights can be used to stop competitors adopting similar marks, but only by the relatively uncertain and expensive redress of an action for Passing-off.
It is sensible to Register any Trademark which is, or could become commercially important. It is much easier to stop a competitor using the same or a similar mark on the same or similar goods or services by an action for infringement of a Registered Trademark than it is to bring a Passing-off action. In addition, Registration confers a right to use that cannot be disturbed by others while the mark remains validly registered.
If businesses don’t register their Trademarks, they run the risk that someone else might do so for the same or a similar mark and then try to stop them.
But even a Registered Trademark, if allowed to just become the name of the goods, can no longer serve to distinguish its owner from other sources for the goods and so it ceases to be valid. The words “aspirin” and “linoleum” were once Registered Trademarks. A Trademark can be cancelled if it isn’t used for five years.
M.J.P. Deans can advise on any Trademark matter, including use or availability searching, and file Applications, Oppositions and Cancellation cases in Britain or at the European Union Intellectual Property Office - EUIPO - and through Associates in other countries.
DESIGNS
Protection for Designs - the appearance and decoration of articles of all kinds, and material by the length - can be achieved in a number of different ways in Britain - by Copyright, by Design Right or by Design Registration.
Copyright needs no Registration in Britain and protects any artistic work, including the drawings for a Design, from being copied for up to 70 years after the death of the creator.
Design Right, a Copyright-like protection, also needs no Registration in Britain or for Europe as a whole, and so is free. Design Right protects the shape and configuration of an article recorded in a “design document” from being copied by making the article itself. A Design Document may be a drawing, a photograph, a prototype or even computer data. Design Right does not extend to surface decoration or to features which must-fit or must-match with something else. In Britain, the protection lasts for 10 years from first marketing, but others can demand a licence after 5 years - unless there’s a corresponding Design Registration. Elsewhere in Europe it lasts for 3 years from first marketing.
To bring a Copyright or Design Right Infringement case, actual copying must be proved. Independent creation, if true, would be a complete defence.
Design Registration - what Americans call a Design Patent - is available to protect features of shape, configuration, pattern or ornament of an article which appeal to and are judged by the eye in the finished article. Goods sold by the length such as textiles or lace can also be covered by Design Registrations. For Infringement, it doesn’t matter whether there has been actual copying if an article has effectively much the same appearance or decoration. In Britain or in Europe, a Design Registration Application can be validly filed up to one year after first disclosure.
A British or European Union Design Registration can last for up to 25 years, but it cannot protect features dependant on the function of the article or how it works. To protect these features, if novel and inventive, you need a Patent.
M.J.P. Deans can advise on any aspect of Design Protection, and can file Applications for Design Registration in Britain or for the European Union and International Design Registration to cover those countries that belong to the Hague Convention. The firm also handles corresponding Applications for Design Registration abroad through foreign Associates.
COPYRIGHT
Every person and business already owns one kind of Intellectual Property... perhaps without knowing. This is Copyright, which automatically protects anything you write or draw which has any originality - even a business flyer or customer database - as a literary or artistic work.
Software, photographs, audio and video all also enjoy Copyright.
In some countries such as the United States, Copyrights can be Registered to prove ownership, but in Britain no Registration is required or available, and so Copyrights are entirely free.
However, to protect your Copyrights, you need to keep your records in order.
To enforce your Copyright or Design Right, you must show that you really do own the rights. It is also wise to use the correct Copyright Marking - “© Year Created, Name of Copyright Owner” see the example below. You should keep all the original drawings and drafts, signed and dated by whoever produced them. Proving ownership may involve producing employment contracts for the author or designer. So keep all your records for as long as anything is commercially valuable.
Copyright will last for the lifetime of the author or designer - plus 70 years.
However Copyright and Design Right can’t do everything. They can't stop anyone who independently comes up with something looking similar - only Design Registrations can do this - or who produces a rival product that makes use of the ideas behind yours - for this you need a Patent - and those rights aren’t free.
©1999 Michael Deans and ©2016 Michael Deans
Disclaimer: This Website should not be treated as legal advice as it can only deal with matters in a general way.
In any particular case, specific legal advice should be sought from M.J.P. Deans or from another Firm of Patent & Trademark Attorneys or from Solicitors who specialise in Intellectual Property.
Many a successful new business is based on exploiting innovation - a new or improved product or a new and improved way of doing something - but if it’s not protected that innovation is free for any competitor to copy. Several of our Clients have appeared on the "Dragons Den" television programme, but only after we had taken steps to protect their Inventions by filing Patent Applications.
Patents aim to protect the underlying big idea behind any innovation. A strong Patent can dominate an industry for years to come (up to 20 years). Patents are monopoly rights - any product or process within the scope of the Patent needs a License from the Patentee or it can be stopped in Court, even if entirely independently thought up.
In general there are three requirements for an invention to be patentable:
- It must be new (in other words not disclosed or published elsewhere)
- It must be inventive (in other words not obvious)
- It must be capable of being used industrially - anything from IT to agriculture - but some things are excluded (at least in Britain and elsewhere in Europe - historically the US has been more generous). A method of medical treatment or surgery as such would be excluded. A computer program that had no technical result would be excluded as such. Mere schemes for doing business are excluded. That said, even in the supposedly excluded area, a Patent can often be obtained if the patent claims are carefully worded to focus on technical features. M.J.P. Deans has obtained many commercially valuable Patents for medical, surgical and software innovations.
Patent documents need to be carefully drafted. An Application must be filed before any details are disclosed to outsiders other than in confidence. Private Inventors and Small Businesses should seek early professional advice.
M.J.P. Deans handles Patent Applications directly in Britain and at the European Patent Office, and through Associates in other countries.
Valuable though Patents undoubtedly are, don’t forget the other ways of protecting Intellectual Property.
* Design Registration can protect the external appearance of a product in a similar way to Patents, as explained below.
* Copyright (& Design Right in Britain and elsewhere in Europe) - especially as they are entirely free - may also provide useful protection, again as explained below.
* In many cases a Trading Name or the Product Name or Brand is important and should be protected as a Trademark.
TRADEMARKS
What makes people associate a particular product or service uniquely with its manufacturer or supplier? Whatever it may be... It’s a Trademark.
It may be a brand-name, a logo, one or more letters or numbers, the shape of the product or of its container, sometimes a colour, a sound (a Jingle in a TV advert) or even a smell - provided, in each case, that the Trademark serves to distinguish one source for that product or service (whether the manufacturer, retailer or service provider) from all other sources for similar products or services.
Whatever it is, it may be the single most important asset of a business. Guarded, it can bring a continuous stream of custom to a business virtually for ever. Trademarks, once Registered, can be repeatedly renewed. Trademark No. 1 - the Bass red triangle - is still registered in Britain after well over a century.
In Britain and other Common Law countries, rights can arise in a Trademark simply by use without a Registration. These Common Law Rights can be used to stop competitors adopting similar marks, but only by the relatively uncertain and expensive redress of an action for Passing-off.
It is sensible to Register any Trademark which is, or could become commercially important. It is much easier to stop a competitor using the same or a similar mark on the same or similar goods or services by an action for infringement of a Registered Trademark than it is to bring a Passing-off action. In addition, Registration confers a right to use that cannot be disturbed by others while the mark remains validly registered.
If businesses don’t register their Trademarks, they run the risk that someone else might do so for the same or a similar mark and then try to stop them.
But even a Registered Trademark, if allowed to just become the name of the goods, can no longer serve to distinguish its owner from other sources for the goods and so it ceases to be valid. The words “aspirin” and “linoleum” were once Registered Trademarks. A Trademark can be cancelled if it isn’t used for five years.
M.J.P. Deans can advise on any Trademark matter, including use or availability searching, and file Applications, Oppositions and Cancellation cases in Britain or at the European Union Intellectual Property Office - EUIPO - and through Associates in other countries.
DESIGNS
Protection for Designs - the appearance and decoration of articles of all kinds, and material by the length - can be achieved in a number of different ways in Britain - by Copyright, by Design Right or by Design Registration.
Copyright needs no Registration in Britain and protects any artistic work, including the drawings for a Design, from being copied for up to 70 years after the death of the creator.
Design Right, a Copyright-like protection, also needs no Registration in Britain or for Europe as a whole, and so is free. Design Right protects the shape and configuration of an article recorded in a “design document” from being copied by making the article itself. A Design Document may be a drawing, a photograph, a prototype or even computer data. Design Right does not extend to surface decoration or to features which must-fit or must-match with something else. In Britain, the protection lasts for 10 years from first marketing, but others can demand a licence after 5 years - unless there’s a corresponding Design Registration. Elsewhere in Europe it lasts for 3 years from first marketing.
To bring a Copyright or Design Right Infringement case, actual copying must be proved. Independent creation, if true, would be a complete defence.
Design Registration - what Americans call a Design Patent - is available to protect features of shape, configuration, pattern or ornament of an article which appeal to and are judged by the eye in the finished article. Goods sold by the length such as textiles or lace can also be covered by Design Registrations. For Infringement, it doesn’t matter whether there has been actual copying if an article has effectively much the same appearance or decoration. In Britain or in Europe, a Design Registration Application can be validly filed up to one year after first disclosure.
A British or European Union Design Registration can last for up to 25 years, but it cannot protect features dependant on the function of the article or how it works. To protect these features, if novel and inventive, you need a Patent.
M.J.P. Deans can advise on any aspect of Design Protection, and can file Applications for Design Registration in Britain or for the European Union and International Design Registration to cover those countries that belong to the Hague Convention. The firm also handles corresponding Applications for Design Registration abroad through foreign Associates.
COPYRIGHT
Every person and business already owns one kind of Intellectual Property... perhaps without knowing. This is Copyright, which automatically protects anything you write or draw which has any originality - even a business flyer or customer database - as a literary or artistic work.
Software, photographs, audio and video all also enjoy Copyright.
In some countries such as the United States, Copyrights can be Registered to prove ownership, but in Britain no Registration is required or available, and so Copyrights are entirely free.
However, to protect your Copyrights, you need to keep your records in order.
To enforce your Copyright or Design Right, you must show that you really do own the rights. It is also wise to use the correct Copyright Marking - “© Year Created, Name of Copyright Owner” see the example below. You should keep all the original drawings and drafts, signed and dated by whoever produced them. Proving ownership may involve producing employment contracts for the author or designer. So keep all your records for as long as anything is commercially valuable.
Copyright will last for the lifetime of the author or designer - plus 70 years.
However Copyright and Design Right can’t do everything. They can't stop anyone who independently comes up with something looking similar - only Design Registrations can do this - or who produces a rival product that makes use of the ideas behind yours - for this you need a Patent - and those rights aren’t free.
©1999 Michael Deans and ©2016 Michael Deans
Disclaimer: This Website should not be treated as legal advice as it can only deal with matters in a general way.
In any particular case, specific legal advice should be sought from M.J.P. Deans or from another Firm of Patent & Trademark Attorneys or from Solicitors who specialise in Intellectual Property.