Intellectual property, or IP, refers to an idea or other form of creative work must legally be treated as an asset or physical property. Common examples of IP include things like:
- An author’s copyright on a book idea
- A distinctive logo that represents a brand
- A sure way to produce a physical product (such as a recipe)
IP law covers the protection of copyrights, trademarks, patents, trade secrets, and several other domains. Generally, IP laws give the creator of a unique idea a monopoly over its use. IP is incredibly valuable because it represents ownership over an intangible entity. Because of this intangibility, however, it can also be challenging to quantify.
In today’s day and age, everything has moved online. Globalisation is ever increasing. As such, IP rights are more important than ever to protect and regulate. Understanding your rights as someone who has produced a new idea is critical in ensuring that you are given the credit you deserve.
Four types of Intellectual Property
Intellectual property can broadly be divided into four major categories. Each category applies to different kinds of ideas and includes various protections and rights.
Copyright applies to work that is concretely recorded in some way. This includes things like literary, artistic, musical or theatrical work. It gives the creator exclusive rights to the work they have produced. For example, they are the only ones allowed to authorise the distribution of the item or process. Further, it enables the creator to take legal action if any of their work is plagiarised or copied without consent.
Copyright laws are automatically international (with few exceptions). Registering your product with the UK Copyright Service ensures verifiable evidence of copyright and complete ownership. Do you have existing copyright that may have been infringed? If so, you can report it immediately using the online copyright registration facility here.
A trademark is a name, slogan, design, symbol, or otherwise unique entity that is affiliated or representative of a product or organisation. Unlike copyrights, trademarks are not automatically international. Instead, they are registered nationally (i.e. United States, Japan, India) or at the territory level (i.e. European Union), by an appointed government body. Alternatively, the Madrid System is a newly devised trademarking system that allows a corporation to submit trademark applications to many countries simultaneously. Obtaining a trademark can be a lengthy process. It can take anywhere from 6 to 18 months.
Once fully registered, trademarked material is identified using the symbols “TM” or “®”. Note that these are protected marks. In other words, using them at the end of an item without having the proper paperwork to approve the trademark is illegal.
Patents apply to industrial processes and inventions to protect against any unauthorised use of a specific process or object. It is a form of IP that gives its owner the sole legal right to exclude others from making, using, or selling an invention for a specified period. Unlike with other forms of IP, in exchange for this exclusive right, the patent owner must make all of the relevant technical information about the invention publicly available in a published patent document.
4. Trade Secrets
Trade secrets are an often overlooked form of IP. This refers to rights on any confidential information that may be sold or licensed. To qualify as a trade secret, the information must be:
- Commercially valuable
- Be known to a limited number of people (i.e. those within a corporation)
- Be subject to reasonable steps taken by the rightful owner of the information to keep it secret (i.e. use of non-disclosure agreements, confidentiality agreements, etc.)
In general, any confidential business information which provides an edge or makes a particular company unique is protected. This can be technical information (i.e. process of creating an item, testing data, designs or drawings) or commercial information (i.e. distribution methods, suppliers and clients, advertising and marketing techniques, etc.).
Any information that is circulated outside of the select group of people is considered a breach of IP. The trade secret owner may be able to file suits of industrial or commercial espionage, breach of contract, and/or violation of confidence.
Who has the rights to intellectual property?
For the most part, if someone is working independently, the person who created the content owns the property rights. Under any contract, intellectual property made in a job role by an individual employee often belongs to the employer. That said, if the employee can prove that the invention was of outstanding benefit to the employer, they may be able to claim compensation for the invention after it is patented.
An employee’s contract will almost always have clear guidelines for intellectual property rights. These will outline things like authorship, pay raise, and inventor rights on the patent application.
Intellectual property rights can, and often are, transferred to another individual or corporation. IP rights can be sold for quite a large sum of money, which is why they are so contentious, to begin with.
Common mistakes when dealing with intellectual property
As a company, if you foresee any potential intellectual property development, it is essential to have foresight in your employee and affiliative contracts. There are some common mistakes that corporations tend to make, which can lead to massive issues down the line. These include:
- Not taking steps to develop and protect trademarks immediately
- Accidentally allowing employees to gain ownership of intellectual property (this means that they are entitled to take the rights with them if they ever leave the company)
- Failing to keep copies and records of new designs or updated trademarks
- Investing in new product development without checking on existing and competing IP contracts that exist
- Invalidating a patent application by disclosing the invention in advance (referred to as “swooping”)
- Asking a secondary agent to do work without a written contract saying the IP is yours
- Paying a patent company to draft and complete a patent application without checking on its feasibility
What can I do if someone is infringing my IP or vice versa?
If you believe your intellectual property is being taken advantage of, you can pursue legal action. The first step is intuitive: tell whoever is falsely using your IP that they cannot do so. Show proof of your intellectual property claim. An intellectual property solicitor’s letter informing them of their breach may be enough to alleviate their use of your material. There are so many IP regulations in circulation. It is possible that they did insufficient research and are not aware of your existing legal right.
If this does not work, you can use alternative dispute resolution procedures (i.e. mediation or arbitration). This, of course, costs money but can be far more effective and time-efficient than a full-blown court proceeding.
In the case that legal action is unavoidable, you must contact a specialised intellectual property solicitor. Ideally, you will avoid doing this at all costs! It can get costly very quickly. You will need to take into account who is defying your rights and explain to a court how they are doing so. It can be challenging to argue against large companies, especially if you are a smaller organisation. Be sure you have a clear case with all of your paperwork lined up and prepared.
Alternatively, someone may reach out to you because they believe you have infringed their intellectual property rights. If this happens, you may also want to contact an intellectual property solicitor. If you have one, it will be essential to explain the overlap in your two potential patents or copyrights. Ideally, the situation can be resolved with minimal financial strain for both parties. The dispute should conclude with a written agreement clearly outlining how the intellectual property can be used by each party going forward.
Intellectual property can be a complicated legal topic. Drawing boundaries and establishing clear distinctions on issues which do not tangibly exist has proven difficult for many individuals. That said, anybody who innovates and creates deserves recognition and protection for their invention. If you need clarification, legal advice, or help on a matter to do with intellectual property, contact an intellectual property solicitor today.
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