Intellectual property (IP) law is a dynamic and complex field of law. In this article, Valerie Annan gets back to the basics of IP education with a guide to the most important areas of IP law.
Get ready to master the basics of IP with our brief guide to copyright, trademarks, designs and patents, including when official registration is required.
IP education: Starting with the basics
- Copyright
Copyright ensures the protection of literary, dramatic, musical and artistic creations. The threshold standard for this IP right is that a work must be original and fixed. 'Original' implies that a work is independently created by a human author and 'fixed' means that it is captured in a tangible medium and not merely an idea. If these conditions are fulfilled, a copyright owner can prevent third parties from copying, distributing, publicly displaying and creating adaptations of their work. Copyright protection comes into existence automatically and, in jurisdictions such as the EU, is valid until up to 70 years after the death of the work's creator.
- Trademarks
Trademark rights offer protection for unique brand identities. They can cover any sign – from brand names to logos, slogans, colours, product shapes or packaging and even smells or sounds – provided they are distinctive. In other words, a mark must be able to differentiate the goods or services of one business from those of other businesses. A mark can be inherently distinctive, but distinctiveness is also accepted when a mark has gained recognition through extensive use (known as 'acquired distinctiveness'. In many jurisdictions, such as the EU, trademark protection offers a 10-year monopoly that is renewable every 10 years.
- Designs
Registered and unregistered design rights can protect the visual appearance of the whole or parts of two- or three-dimensional products. Registered designs offer valid protection against infringement only if a design is novel and has individual character. 'Novel' ensures no identical or immaterially different design exists already in the market, 'individual character' implies that the overall impression a design produces on an 'informed user' differs from the overall impression that any other earlier design produces on such a user. Once these conditions are fulfilled, a design right owner can register their design to obtain a monopoly right for a maximum of 25 years (depending on the jurisdiction). In comparison, unregistered design rights come into being automatic protection if a design is original. Depending on the jurisdiction, uUnregistered design rights provide protection for differing lengths of time. For example, unregistered designs lapse in the EU after three years, while unregistered designs in the UK last for a maximum period of 15 years.
- Patents
Patent law exists to protect innovation. To qualify for patent protection, an invention must:
- be new
- involve an inventive step, i.e. it is not obvious to a person skilled in the art
- be capable of industrial application
- be permissible (i.e. the commercial exploitation of the invention cannot be contrary to public policy or morality)
In general, a patent provides a 20-year monopoly on an invention.
IP education: When do you need to register intellectual property?
As we have covered in this short IP education guide, it is possible to protect many forms of creativity and innovation through registration. As this registration route and formalities will differ depending on your business operations, goods/services and geographical market, it is recommended to consult with a specialist IP attorney firm, such as Novagraaf, for tailored advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.