As the world becomes more interconnected and globalised, there has been a rapid increase in innovation and an exchange of new ideas followed by a rise in demand for their protection. If you are someone who has come up with a new invention, it is vital you understand Intellectual Property Rights to ensure you protect it effectively.
This article aims to provide a basic understanding of intellectual property, types of protection available, the application process of obtaining an intellectual property right and the potential impact of Brexit that needs to be considered by an individual or business.
What is an intellectual property right?
Intellectual property refers to creations of the mind such as inventions, ideas, literary and artistic works, designs or symbols used to represent a brand or product. It is the exclusive right which offers protection to creators, allowing them to benefit from their work and investment. Intellectual property rights refer to the legal right to be protected from several situations such as infringement, inappropriate usage and unauthorised usage from third parties.
The Intellectual Property Office (IPO) is the official UK government body responsible for intellectual property rights. The four main categories of intellectual property rights are copyrights, patents, trademarks and both registered and unregistered design rights. The types of protection can be further divided into two categories; those which are automatically protected and others which require an application.
How do you obtain an intellectual property right?
Copyright automatically arises provided that specific requirements are met. A copyright is defined as a property right that subsists in original, dramatic, musical and artistic works. These include architectural works, sound recordings, broadcasts and computer programs as the subject of protection. An individual who owns a copyright will be allowed to prevent unauthorised use of their work which includes making copies or uploading the work onto the internet. It is important to note that copyright protection does not last indefinitely and the period of protection depends on the type of work.
An unregistered design right protects the appearance, shape and configuration of the whole or part of a product. It is granted automatically provided that the design is new and creates an overall different impression compared to an already existing design in the market. A registered design right offers more protection as it allows complete control over the design, whereas an unregistered right only provides the right to prevent third parties from copying it part or whole of the design. The IPO registers design rights in the UK and Registered Community Designs (RCD) with the European Union Intellectual Property Office (EUIPO).
A trademark is a distinctive sign or symbol that identifies certain goods or services produced or provided by an individual or a company. It ensures that the owners of the trademark have the exclusive right to use the mark to identify goods or services or to authorise others to use them in return for a payment. These include product names, logos and product jingles. Trademark registration requires an application needs to the IPO where the trademark itself needs to be distinctive and capable of distinguishing goods and services. A CTM can be applied for to the EUIPO.
A patent protects inventions and new inventive technical features of products and processes. To qualify for a patent, the invention must be new and needs to involve an inventive step. To obtain a patent, an application needs to be made to the IPO and the European Patent Office (EPO) for patents outside the UK, in European Union (EU) member countries.
A recent example of a patent is within the pharmaceutical industry where ongoing discussions regarding patenting a vaccine for coronavirus are being held. Here, all of the requirements are met as the vaccine is new, involves an inventive step and has a technical feature as well. Patents can also be used for new machinery or a new manufacturing process.
Furthermore, more than one type of intellectual property protection can be used for a particular product. For example, the owner of a product would need to register the name and logo as a trademark, protect the product’s unique shape as a registered design, patent a completely new innovation that is part of the product and use a copyright to protect the drawings of the product. To assess the kind of protection needed, you can speak to a trademark or patent attorney, visit a local IP clinic or use the IP Equip service to find out what type of intellectual property you has.
The most critical aspect of protecting any idea, invention or product is to protect it in all relevant countries. Trademarks can be filed nationally in the applicable EU Member States or filed as a single EU-wide CTM which is more cost-effective and efficient as it protects a product from infringement across all 28 EU Member States. To put it in perspective, the cost of filing a CTM is equivalent to the cost of filing three national applications.
Will Brexit impact your intellectual property rights?
There will be no effect on intellectual property rights during the UK’s transition period, which will come to an end on 31st December 2020.
However, businesses are advised to use this time to assess and understand the potential impact of the UK’s departure from the European Union on the territorial scope of their intellectual property rights.
Trademarks and design rights will be most affected after the transition period as CTMs and RCDs will no longer apply in the UK. To offer a solution, the UK Government has confirmed that comparable UK trademarks and registered designs for every registered EUTMs and RCDs will be created cost-free.
Furthermore, the Unitary Patent Scheme (UPS) launched by the EPO was set to take place in 2017, but now the UK’s participation in the scheme is unclear. The scheme will make it possible for businesses and individuals to protect their inventions in all participating countries by submitting a single patent application. However, the UK might not be able to benefit from this advantage anymore.
Existing patents granted by the EPO will automatically be transferred onto the new system if needed. While many other factors still need to be taken into consideration, these are just some of the changes being introduced. Therefore, businesses have been advised not to make assumptions and not to rely on the Unitary Patent System as it is in need of review and the UK may or may not participate in the scheme post-Brexit.
Despite the uncertainty, negotiations are still taking place that will eventually provide a clearer picture of the impact of the UK’s departure from the EU on intellectual property law. In the meantime, businesses and creators need to ensure that their IP rights are Brexit proof and look for alternatives to ensure complete territorial protection.
The World Intellectual Property Organisation is one of the 15 specialised agencies of the United Kingdom and is the global forum for intellectual property services and information, which businesses can look to for some further guidance.
This article is intended for guidance only and must not be relied upon for specific advice.