How to protect your intellectual property – Understanding the basics

6 mins

Do you and your teams understand the basics of IP?

There are several types of intellectual property (IP) rights available. Some are registrable and others are not. Registrable rights require you to follow a registration process to protect your IP; whereas non-registrable IP rights arise automatically when the IP, or an article embodying the IP, is created.

Registered IP rights are monopoly rights. This means they grant the right to exclude all others from acts such as producing, using, or selling your invention. However, this does not provide an automatic right for you to perform the innovation yourself.  You still must take care to avoid infringing the rights of others, for example you may need to first obtain a licence of earlier third party rights in order to exploit your own.  Non-registered IP rights generally prevent the IP, or articles embodying the IP, from being directly copied.

Registered IP rights are also territorial, which means they are only valid in the country or region in which they have been granted. Therefore, when applying for IP rights, it is important you apply to all territories your business may wish to operate in in future. The extent of protection for non-registered IP rights depends on the type of right.

Patents
To obtain a patent, you must file a full and detailed description of your invention, including drawings, as well as a set of claims. The scope of patent protection is ultimately defined by the contents of the claims. Patent protection can last up to 20 years from the date of filing an application, however the patent must be renewed annually after the fourth anniversary of filing.

Trade marks
To register a trade mark, you must file a full description of the mark and specify a list of the goods and services that it applies to. Once registered, trade mark protection lasts for 10 years, after which it can be perpetually renewed. 

Registered and unregistered designs
To register a design, you must file up to 12 illustrations of your design. A design is initially registered for five years, however this can be renewed in 5-year intervals up to a maximum of 25 years.

UK unregistered designs are protected automatically for 10 years after the design was first sold or 15 years after it was created, depending on which date is earlier. You need to be able to prove when you created the design, for example by keeping signed and dated design documents. Like registered design rights, unregistered designs are also territorial.

Unregistered community design rights (UCDRs) are the European Union equivalent. For these, protection lasts for three years from when the design is deemed to have been made available to the public within the community, for example by trade, publication, or exhibition.

Copyright
Copyright protection automatically applies when you create original literary or artistic work, sound or film recordings, or original non-literary written work, such as software, web content and databases. Your work could also be protected in other territories as part of the Berne Convention. The length of copyright protection depends on the type of work, however in the UK this could be up to a maximum of 70 years after the author’s death.

Trade secrets
Trade secrets can provide protection for as long as the secret is not disclosed. This protects against breaches of confidence but requires that an obligation of confidence must be expressed, for example, through the use of a non-disclosure agreement (NDA).

Each of these IP rights provide their own type of protection, but you may also wish to rely on a combination of different types to best protect your invention.

The above is not intended to provide legal advice.  If you wish to seek legal advice on any of these issues, please get in touch with a member of our team.

This article was published in BEYOUROWN in April 2021.

Written by: Jessie Harrison