Intellectual Property : Is your business protected?

Our resident IP expert and Solicitor in the Civil Litigation and Dispute Resolution Department, Gabriella Shepherd, provides an easy to follow overview of the different rights which you or your business may benefit from automatically. You can use this guide to help to determine if your business is sufficiently protected.

With more of us than ever working from home, and the opportunity for creativity to flourish in the spare time many of us find ourselves having, it is crucial that you consider protection of your creative endeavours. In the UK, we benefit from protection of some creations without even having to do anything. It is important that you and/or your business understand what to look for. If you are putting your creative enterprises out into the public forum, it is important that you monitor whether this is being exploited in any way by competitors. Being aware of your rights, and what this entitles you to, should help you to understand what to look for to protect your business.

Copyright

• Copyright protects creative output and prevents others from copying your work.
• Copyright arises automatically and, in most cases, the protection lasts for 70 years from the death of the creator.
• Copyright may exist automatically and allow you to stop others from copying your work if it fits into one of these categories of work:
  • Original literary, dramatic, musical or artistic works
  • Sound recordings, films, broadcasts, cable programmes
  • Typographical arrangement of published edition (the final typed/published version of a work)
• If you have created something which falls within these categories, and it meets the standards required of it, it will automatically be afforded copyright protection. You do not need to do anything else. This means you will have the exclusive right to copy, publish, perform or show it in public and/or to adapt it. If anyone else does any of those things without your permission, this is an infringement.
• There are certain defences available to somebody using a work without authority to do so, but if not applicable, the general remedies available to you are: an injunction to stop the use, damages or an account of profits.

Unregistered Design Rights

• Unregistered Design Rights (UDR) protect 3 dimensional shapes and configurations (of the whole or part of an article) and prevent others from copying your work. Example of 3D shapes and configurations which may benefit from this protection are parts or the whole of a machine, the shape of original clothing or jewellery, packaging, or even the handle of an umbrella.
• UDR arises automatically and in most cases, the protection lasts for 10 years from the end of the year of first sale/hire.
• Your design may be protected automatically once it is recorded in a design document or an article has been made to that design.
• If you have created a product or design which falls into this category; it has sufficient originality and is not an excluded design (for example surface decoration is not afforded protection) then it will automatically be protected as an UDR. This means the owner of it will have the exclusive right to reproduce the design for commercial purposes and make articles to that design. You do not need to do anything else to be afforded this protection. If anyone else then reproduces your design and makes articles to it for commercial purposes, this may be an infringement of your rights. It may also be an infringement if somebody then imports, sells or hires the infringing product with reason to believe it is an infringing article.
• The general remedies available for infringement are damages, injunctions, accounts of profit, order for delivery up of infringing articles and an order for disposal of infringing articles.

Passing Off

• Passing off protects the goodwill of a business. For example, a logo, name or ‘get up’.
• It protects against unfair use of, or damage to your business reputation and this protection arises automatically, there is no registration. The protection afforded here last indefinitely, there is no limitation.
• The common law of passing off allows you to prevent others from selling their goods or services by making unfair use of your business reputation. Passing off can happen in many ways. Typically, you could expect to see someone else using the ‘get up’ of your goods (i.e. their packaging and presentation) or adopting some mark, sign or other feature which customers associate with your business. The infringer would use this, or something confusingly similar to it, for their own goods/services, resulting in customers being fooled into thinking they are buying your product. This protection exists to stop other from ‘riding on the coattails’ of your hard-earned reputation.
• To protect your goodwill, you need to demonstrate 3 crucial elements are satisfied. Firstly, you need to have evidence of goodwill (reputation). You need to show that you have a reputation in relation to some distinguishing feature, this could be a logo, name or get up. Secondly, there must be a misrepresentation made by the other business in the course of trade, leading to confusion. You must be able to demonstrate that the other business is using your logo, name or get up (or something similar to it) which is causing customers to believe that your goods/services are associated with the other business. There must also be some overlap in the field of activity – for example, are the type of goods/services both businesses offer the same? Finally, you need to show that there has been some damage to your business, or likelihood of damage, because of the misuse of your goodwill.
• If another business is riding on the coattails of your success and you want to stop it, you could rely on passing off and obtain an injunction halting the behaviour, damages, an account of profits, an order for delivery up or destruction of offending goods and a declaration as to your rights.

Your creations may fall into more than 1 of the above unregistered rights. In addition, there are methods of registration to protect your creations which you can consider to pro-actively protect your business. We are seeing a rise in copycat websites in the current time and, with the ongoing uncertainty looming over us, we urge you to ask the question – is your business protected?

If you have any queries or wish to discuss this further or alternatively, explore methods of registration, please contact Gabriella at [email protected] or by telephone on 03300 585 222 and ask to be put through to Gabriella.

More information on all of our services can be found at www.btmk.co.uk and our telephone lines are available 24/7 as well as Live Chat via our website.

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