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7th August 2012

Had a good idea recently?

We are frequently approached by people looking to protect something they have created and that they hope will have economic value. This can be a brand, name, product or just an idea. We thought it would be useful to give a brief introduction to this interesting area of law ----- Intellectual Property.

Intellectual property rights can be valuable to an individual or a business and protecting them is definitely something to consider. So what forms of Intellectual Property can we advise on and how do they work?

Trademark

This is used to protect logos, symbols, words or a combination that are distinctive and identify a product or service. This is the area of creating a "brand". Unlike the types of Intellectual Property protections mentioned below, trademarks must be registered. This is not particularly cheap but there are a number of benefits in registering a trademark and a trademark is potentially a valuable asset. It can be licensed, franchised and sold. There must be something unique about the trademark in association with the product or service for it to be registered as a trademark i.e. customers will recognise the goods and services as coming from one origin and therefore acts as a guarantee for the consumer. Invented words often form the strongest type of trademark protection. Company names and domain names are protected by other legislation but can also be registered as trademarks so long as they meet the trademark criteria. The criteria for what can and cannot be registered as a trademark is quite detailed and something we can advise you on. For example trademarks must be distinctive, not customary in your line of business, must not simply characteristics of the goods or services characteristics, not be offensive etc. The big thing about a registered trademark is that if someone infringes it then that is a wrong and you don't have to prove they knew of the trademark or that they intended to infringe it - just that they have.

Passing Off

As the name suggests, this prohibits someone from "passing off" their goods and services as yours. They might do this by using similar packaging, colours, shapes, names etc. Restraining passing off is intended to protect your goodwill and to prevent someone else taking economic benefit by confusing the public into believing that they are buying your product or service when in fact they are not. Passing off is designed to prevent misrepresentation. The right to prevent passing off does not depend on anything being registered so it is a useful form of protection. It is however necessary to show intent and that the public are likely to be confused.

Copyright

This is an automatic right conferred on any original artistic work when it has been published. The work may be in the form of a film, music, writing or, for example, computer software. Copyright prohibits copying, adapting, distributing, performing in public, renting or lending to the public and communication to the public by electronic transmission. Material on the internet is protected by copyright, however, names, ideas, industrial articles are not. Copyright material can be bought, sold, inherited and transferred and it can also be licensed for others to use. The internationally recognised symbol for copyright protected work is © but this is not necessary in the UK. If someone infringes your copyright -- and as the name suggests it is necessary to prove "copying" -- you can go to court for an order to stop them, destroy the offending articles and give up any profit they have made. Copyright again needs no registration. The work must show some originality and the application of some skill or judgement but otherwise it simply exists in the article created.

Finally there are Patents. If what you need is a patent then this is so specialised that we would not handle this and would introduce you to a patent agent. In our experience however Trademark, Passing off and Copyright are the most commonly encountered and relevant protections for many individuals and businesses.

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