Protecting Ideas, Designs and Information

In the ordinary course of a business ideas will be formulated, expressed (which may be published), designs created for use in promoting and information about the business will be disseminated.  Such matters might broadly be described as the Intellectual Property Rights of a business and in many cases these may be protected at law.  Royds advises its clients to record the ownership and date of creation of designs and so forth in order to be able to take action to protect intellectual property rights and/or defend them in the event of any allegation against the business of plagiarism.

What are the rights?

Copyright

A bundle of rights enabling the owner to prevent others from using their work without consent and protects a range of original works including, but not limited to photographs, drawings, literary works, dramatic works, musical works, sound recordings, films, broadcasts computer programmes and databases.

• Three dimensional articles are capable of protection if they amount to works of “artistic craftsmanship” – “artistry” and “craftsmanship” must both apply and exist simultaneously.
• Copyright lasts for the life of the creator plus 70 years.
• Copyright is not registerable, it arises automatically upon the creation of the works.
• Note the work must be original, it cannot be copied from an earlier work, and must be the result of the independent application of skill and effort by the creator.
• The first owner of copyright in the work will be the creator, or if this is in the ordinary course of his or her employment then the employer is the first owner.

Unregistered design right

As with copyright, unregistered design right protection arises automatically when an “original” design is created.  The features of unregistered design right are:-

• It protects the aspects of shape and configuration of an article to which the design is applied except those which enable the article to be connected to, or placed in, around or against another article so that either article may perform its function.
• The person creating the design is the “designer” and will be the first owner unless the design is created in the course of employment or pursuant to a commission.
• Again, as with copyright the design must be original and not copied from an earlier design or be commonplace.
• The right may last up to a maximum of 15 years, but if marketed within the first five years then the period of protection is reduced to a total of 10 years from that date, and during the last 5 years licences are available as of right.

Community unregistered design right

This is similar to unregistered design right and again automatically comes into existence upon offering the design or any article made to the design to the public anywhere within the EU.  Unregistered community design right only lasts for a period of 3 years, but may extend to the surface declaration of the product as it protects a new design that has individual character.  A design has individual character if its overall impression differs from what is already on the market in the mind of an informed user.

Registered design right

Having created an original design the best form of protection is to obtain a certificate of registration. Having obtained a certificate of registration from the Intellectual Property Office the proprietor may enjoy up to 25 years protection.  The protection is in respect of features of shape, configuration, pattern or ornament applied to an article which is subject to an industrial process.

• The design must have individual character (see above).
• The design must be new, it cannot be the same as an existing design that has been registered, published or disclosed anywhere prior to the date of registration.  It will not be treated as new if the design differs from previous designs only in material detail.

Community registered design

The European Community operates a similar system to that of the UK.  In order to enjoy registered community design right the design must be registered with the Office for Harmonisation in the Internal Market based in Alicante, Spain.  Once again the registered design will enjoy a period of 25 years protection.

Confidential information

A business will create and receive information that is by its nature confidential and/or contains trade secrets of the business.  Information that has been imparted in confidence and which is not generally known might be capable of protection against unauthorised disclosure.  The right arises from the nature of the information, how it was obtained and disseminated, the relationship between the parties at the time of disclosure and whether disclosure would damage the party claiming confidentiality.

• Information that is not in the public domain can be protected, but anything that is in the public domain is excluded.
• Examples of protectable information are:

(a)           Industrial secrets of any nature, from the formula of a soft drink
to a    method of production or the layout of a factory;

(b)          Inventive ideas;

(c)           Future business plans and financial information;

(d)          Customer lists, contacts, pricing and discount information.

Whereas in copyright and design right law it is the expression of the idea and not the idea itself that is capable of protection, a “concept” might be capable of protection under the law of confidentiality.  If the idea was conveyed “in confidence” then its further dissemination may be controlled.

What are the risks

The scope of protection and extent of intellectual property rights can be significant and every business will enjoy intellectual property rights irrespective of the absence of any registered rights such as certificate of design, trade mark or patent. Advances in technology (in particular the worldwide web) and access to cheap labour markets across the world and the fact that business now operates in a global market the opportunities and ability to make copy products and steal another’s innovation is easier than ever.  Every business has a requirement for effective protection in order to safeguard its legitimate business activity, and design creativity.

Awareness of intellectual property rights is the starting point of any effective protection.  Royds Solicitors are able to advise on the existence, creation and protection of intellectual property rights and operates the highly successful and long established “CopyWatch” Scheme for the British Jewellers Association, British TravelGoods and Accessories Association and Jewellery Distributors Association and is the Partner to Reed Exhibitions Limited (International Jewellery London) in the awareness programme PIPR.

For further information, please contact Stephen Welfare and John North.