IP Basics The business owner’s guide to understanding your IP
IP Basics The business owner’s guide to understanding your IP Intellectual Property Office is an operating name of the Patent Office Contents Intellectual property and your business.................... 1 What is intellectual property?.................................... 2 IP in business planning............................................. 5 Valuing your IP........................................................... 6 Licensing and franchising IP..................................... 9 Patents for inventions.............................................. 15 Trade marks for brands........................................... 19 Design for appearance............................................ 24 Copyright for creative works................................... 29 Parts of this booklet were reproduced with kind permission of the Commonwealth of Australia www.ipaustralia.gov.au The Intellectual Property Office helps businesses, innovators and entrepreneurs understand how intellectual property can create value from their ideas, turning inspiration into sustainable business success. In addition to granting patents, registering trade marks and designs, the IPO supports businesses to use, manage, and enforce their IP to achieve their fullest potential. A strong enterprise culture is central to creating a dynamic economy and with over 160 years experience and expertise, the IPO promotes innovation and growth by offering a vibrant programme of activities and informed advice and support to UK business: www.ipo.gov.uk/business Intellectual property and your business Most successful businesses, large and small, are built on well managed intangible assets or intellectual property (IP). McDonald’s® has used their IP to establish franchises across the globe, while Coca Cola’s® secret recipe and trade mark logo have stood the test of time and kept their product on the shelves. For companies like these, the value of their IP, whether it’s a trade mark, patent, design, copyright or trade secret, far outweighs the value of their physical assets. IP Basics: the business owner’s guide to understanding your IP explains the different types of IP rights, where they fit in your business, how to protect them and the ways in which you can use IP to its full potential through licensing and franchising. It does not provide legal, business or other professional advice so if you are in any doubt, you should get independent advice. IP Basics: The business owner's guide to understanding your IP 1 What is intellectual property? IP assets cannot be seen or touched and it’s sometimes hard to appreciate their true value. However, a basic understanding of the law and its principles will help make sure that you make the most of the mechanisms designed to protect them. Intellectual property rights are a form of protection that gives the owner the ability to take legal action under civil law to try and stop others from making, using, importing or selling their creation. There are different types of intellectual property rights: Patents protect new inventions and cover how products work, what they do, how they do it, what they are made of and how they are made. 2 IP Basics: The business owner's guide to understanding your IP Trade marks protect brands. This could be for a business name, a product or a service. The trade mark could be made up of words, logos or a combination of both and can even be sound or action based. Design protects the overall visual appearance of a product. IP Basics: The business owner's guide to understanding your IP 3 Copyright protects books, art, music, websites, photographs, software, databases, films and print, radio and television broadcasts and promotional material. Did you know....? You can keep ahead of the competition with our IP Equip app for Apple iOS and Android. Scan the QR code below to download the app straight to your smart phone. You can find more information about the app at www.ipo.gov.uk/app 4 Trade secrets can be an important part of your business. The law of confidentiality protects trade secrets. To keep trade secrets protected, you must establish that the information is confidential, and ensure that anyone you tell about it signs a nondisclosure agreement (NDA). If they then tell anyone about it, this is a breach of confidence and you can take legal action against them. You can download a template of a NDA from our website at www.ipo.gov. uk/p-cda. As well as protecting your own intellectual property, you should make sure you don’t infringe anyone else’s rights. Like other forms of property, you can buy, sell and license IP. IP Basics: The business owner's guide to understanding your IP IP in business planning Did you know....? You can find advice on creating a business plan here: www.gov. uk/write-businessplan. IP can be the foundation of any business and should be part of your business plan, including how you plan to manage and protect it. Day-to-day, businesses sell goods or services, but year-to-year they develop ideas and build goodwill and recognition linked to their brand, product or standard of service. This value builds up over time and is strongly linked to your business’s IP assets, so it’s clearly important to identify them in your plan. The success of your business depends on the commitment to your IP assets. So don’t forget, when planning for your business growth, what seems unimportant today might be worth millions of pounds in the future. One of the first things you should do is protect your IP, otherwise you could invest lots of money and resources in your business, only to realise later that the IP already belongs to someone else. Did you know....? The British Library Business & IP Centre in London supports entrepreneurs, inventors and small businesses from initial inspiration to successfully launching and growing a business. For more information go to www. bl.uk/bipc The free, fast and easy-to-use online IP Health Check tool can help you identify your IP assets and provide you with the next steps on how to protect them: www.ipo.gov.uk/iphealthcheck Having an IP strategy and building up an IP portfolio could prove a valuable asset to your business. IP Basics: The business owner's guide to understanding your IP 5 Did you know....? You can find help on valuing your IP www.ipo.gov.uk/ iprpricebooklet.pdf Valuing your IP It is essential to do an assessment and keep an inventory of your IP assets. This is called an ‘IP Audit’ and will help you when it comes to valuing your IP. When conducting an IP audit, you should: 1. Identify the products and services that are key to your business. 2. Identify your IP assets and the legal rights associated with them. 3. Identify what market advantage these rights give you. Did you know....? Cyber attacks cost UK business billions of pounds a year. Government estimate that up to 80% or more of currently successful cyber attacks could be defeated by simple best practice, such as updating anti-virus software regularly. Find out how to protect your business at www.getsafeonline. org/businesses. 6 After you have done this, you should value your IP assets as you would your physical assets. For example – your customer list or database can be a competitive intangible asset you should identify and protect. A secret recipe or a unique service technique also falls into this category. As a starting point, you can try to calculate how much time would be required to develop these assets from scratch or estimate how much a competitor might pay for them. An accountant may be able to help you value these assets and place them in context of your business. IP Basics: The business owner's guide to understanding your IP “ Everything at Aardman starts with an idea” Sean Clarke Head of Aardman Rights and Brand Development Peter Lord and David Sproxton first met at school where they established their creative partnership. In 1972 they registered the name Aardman Animations and after moving to Bristol they created the loveable character ‘Morph’ for the children’s TV show ‘Take Hart’. Aardman had various successes afterwards but the introduction of Nick Park in 1985 took Aardman to new heights. In 1990 Nick Park’s ‘Creature Comforts’ won the Academy Award for Best Animated Short Film and just three years later ‘The Wrong Trousers’, Aardman’s first 30 minute film featuring the infamous Wallace and Gromit was completed. ‘The Wrong Trousers’ went on to win over 30 awards including an Oscar and set the benchmark for the future success of the company. Sean Clarke, Head of Aardman Rights, explains how ‘everything at Aardman starts with an idea’ and how these ideas are then developed further, through a TV series, a film, or for a third party such as a TV commercial or computer game. Because of the way in which Aardman operates, Sean thinks it is essential to protect their ideas in the early stages so that a sustainable plan can be developed to exploit and create long term value, allowing the company to continue to grow. “It’s very important to have a system in place for protecting what we do. If we don’t protect the ideas then it is a ‘free for all’ and it doesn’t allow us to create value to reinvest in future ideas.” IP Basics: The business owner's guide to understanding your IP 7 Aardman subsequently register the key images, characters and word marks from their work i.e. ‘Shaun the Sheep’ to protect others from using them. They also license this work to third party organisations for a fee, who then use Aardman’s registered trade marks on the products they create. Aardman currently produce approximately 75 commercials a year for companies such as Kellogg’s and Hershey’s and Wallace and Gromit have become the faces of the British Tourist Board to promote holidays in the UK. By registering and licensing their work correctly, Aardman is able to use their intellectual property to its fullest potential. They can generate extra financial income for the company and further establish themselves as a global brand, safe in the knowledge that their work is properly protected. Sean describes the many man hours and ‘blood, sweat and tears’ that the Aardman team invest in their work and as such, he urges other companies to protect their IP if they want to benefit from it. “If you’re looking to create an idea you really need to protect that idea if you want to create value from it.” At present, Aardman have a back catalogue of work to be proud of, including the feature films ‘The Curse of the Were-Rabbit’ and ‘Chicken Run,’ created in partnership with DreamWorks. Aardman continues to grow from strength to strength and are considered to be one the world’s best animation companies with an array of awards to prove it. 8 IP Basics: The business owner's guide to understanding your IP Did you know....? A common example of an IP licence is the one you receive whenever you buy a copy of computer software to use in your business. Licensing and franchising IP Licensing intellectual property is important to all sorts of businesses. Companies can derive significant income from licensing, and licensing can offer flexibility in the way a business develops. The management and licensing of the different forms of intellectual property can be important to the success of the business that invents or creates a product, to manufacturers who make the product, to the designers who configure or refine a product’s appearance and to the producers of the packaging and marketing literature and materials. You could consider licensing your own IP, or acquiring the right to license others’ IP for the following reasons: Sharing risk: Where a licensor licenses the right to manufacture and sell products, the licensor receives revenues from that licensing but does not take the risk of manufacturing, promoting and selling those products. On the other hand, the licensee has the right to use the IP without the expense and risk of the research and the costs of developing the product. Revenue generation: An owner of IP may commercialise the IP themselves and may obtain additional income by licensing the IP to someone else to commercialise it in a different field. Increasing market penetration: An owner of IP may license another business to sell in territories that the owner cannot cover. IP Basics: The business owner's guide to understanding your IP 9 Reducing costs: A business may ‘buy-in’ innovation to reduce its research and development costs. Saving time: A business may get its products or services to market more quickly by acquiring a licence to use existing IP, instead of re-inventing the wheel (sometimes referred to as an “engineering workaround”). Accessing expertise: By taking a licence, a business may tap into expertise that it does not have in-house. Obtaining competitive advantage: By acquiring a licence to use IP, a business may obtain an advantage over its competitors. Collaboration: Businesses may want to work together to develop new products and services. Whenever you think about taking or granting a licence of any IP the first step should be to assess the needs and objectives of your business and how licensing might help meet them. The terms and conditions on which IP is licensed may vary. The licensor and licensee usually agree those terms and conditions by negotiation. More information on licensing can be found here www.ipo.gov.uk/licensing 10 IP Basics: The business owner's guide to understanding your IP Franchising Did you know....? The IP Health Check tool can help establish what IP your business has so you can see if franchising could work for your business. Take the test at www.ipo. gov.uk/iphealthcheck When a successful business wants to expand its operation without borrowing capital to develop, one option is to license IP to franchisees. In addition to the actual product or service of the franchisor, the various forms of IP such as trade marks, promotional material, business and marketing systems, shop fitouts and confidential information is licensed to the franchisee to use. Franchising is a way of systematically sharing IP with others to distribute goods or services. The franchisor owns the IP rights and the franchisee pays a fee or regular royalties to use them. A major benefit of the franchise system is the ability to trade under a well known trade mark. Typically, the franchisor grants a trade mark licence to the franchisee in return for a percentage of the gross turnover. An example of a successful franchise is Costa® coffee. They give the franchisee permission to use their brand and a business template to use, which sets out how the premises must look, the service levels and training required. The franchisee then gives Costa® a percentage of their earnings. More information on franchising can be found here www.thebfa.org/ IP Basics: The business owner's guide to understanding your IP 11 “ If people copied our idea it would be detrimental to our business. The patent warns people off, gives us protection and was important for our innovation.” Claire Mitchell Inventor, www.chillipeeps.com One afternoon in 2007, when taking their newborn daughter to meet the extended family, Claire Mitchell came up with the invention behind the Chillipeeps Company. Knowing the baby would need feeding whilst they were out, Claire had packed a carton of formula milk but couldn’t remember if she or her husband had picked up a sterilised bottle. As her husband was frantically rummaging through the baby bag she exclaimed “why hasn’t anyone invented anything that can directly attach to the carton?!” Although they found the bottle, Claire couldn’t get the idea out of her head and as soon as she got home she searched the internet for such a product. When the search returned no results she emailed Peter Jones from the Dragons’ Den, excited to tell him she had an ingenious idea she wanted to share with him. Peter’s automated response asked if the product was patented and for those who were not, explained how to go about it. This was Claire’s first introduction to the Intellectual Property Office (IPO). She contacted the information centre and briefly described the situation and the IPO offered her a free 30 minute appointment with a patent attorney. For ease, the advisor located a CIPA Clinic near Claire, a service run in partnership with the Chartered Institute of Patent Attorneys to give intellectual property advice to small businesses and the general public. 12 IP Basics: The business owner's guide to understanding your IP Claire recalls the initial meeting with the patent attorney, who was a father to three children, and how his knowledge and enthusiasm for her idea motivated her to take the product to market. “He gave me lots of business advice and I knew when I left the meeting it was the start of the journey.” She subsequently had further meetings with the patent attorney who helped broaden her patent application and deal with the legalities. Initially, Claire’s idea covered only teats for formula milk but they expanded this to cover any flowable matter. The design was then developed to fit directly onto bottles of water to allow Claire to cover a broader market. Claire highly recommends getting professional legal advice to ensure you are on the right path for your product and your work is properly protected. “I would suggest that anyone gets professional IP support so they can look at their strategies and get the correct advice they need to help them take their products forward.” To date, Chillipeeps has won multiple awards including the Baby Products Association Concept & Innovation Award and the Women on Their Way Outstanding New Product Award. Chillipeeps teats are stocked by several major retailers throughout the UK and are now selling in 14 countries worldwide. Claire has also expanded the range from her original patent to include a training spout, which she hopes will be equally as popular. IP Basics: The business owner's guide to understanding your IP 13 As Claire’s innovation was the foundation for her business, it was important to patent her idea to give her the best protection possible and prevent competitors from creating a similar product. “If people copied our idea it would be detrimental to our business. The patent warns people off, gives us protection and was important for our innovation.” Claire credits the IPO for guiding her on her path to success and urges others to do the same. “It was an ingenious step to contact the Intellectual Property Office and I would suggest any business did exactly the same...without that step, I don’t know if we would ever have made it to market.” 14 IP Basics: The business owner's guide to understanding your IP Did you know....? A list of patent attorneys is available from the Chartered Institute of Patent Attorneys (CIPA) www. cipa.org.uk Did you know...? You can access advice and support though a network of 13 PatLib Centres (Patent Libraries) covering all regions of the UK. The centres have qualified and experienced staff who offer practical assistance on a variety of services including patent searching, clinics with IP professionals and business advice. To find a centre near you go to www.ipo.gov.uk/ patlib Patents for inventions A patent can be granted to someone who has created something that is inventive, new and useful. Essentially, a patent is an exchange where the patent holder is granted a monopoly which allows them to stop others from making, using or selling their invention. In return for this monopoly, their invention and how to create or replicate it is then published in publicly available patent databases that others can use after the patent expires. This trade-off strikes a balance between private interest to make money from an invention and the public interest for innovation in society. A patent can protect inventions and innovations such as machines, industrial processes, pharmaceuticals and their productive methods, computer hardware, electrical appliances and biological products and processes. You cannot patent artistic creations, principles, theories, mathematical models or any purely mental processes that have no tangible commercial application. There is a fee payable to the Intellectual Property Office for UK patent applications and the process can take several years before you receive a granted patent. Patents can give protection for 20 years provided renewal fees are paid each year. Deciding whether to apply for a patent should form part of your business planning. Obtaining a patent is not a guarantee of business success. You should consider how you are going to use the patent and what you will gain from it. It is your responsibility to enforce your patent and ensure it is properly protected, meaning that any legal action against another party will need to be initiated and funded by you. IP Basics: The business owner's guide to understanding your IP 15 Did you know...? Whilst patent law prevents the granting of patents for a computer program, inventions which are implemented through the use of a computer can be patented. As such, this is a complex area of law where you would be well advised to seek professional advice. Preparing a patent application can be difficult as the basis of a UK patent is a legal document. Its content decides the exact scope of the patent right, and it also must disclose the invention completely so others can understand how it is done. You can prepare a specification and apply for a patent yourself. However, we recommend you use a chartered patent attorney or other professional adviser who has the skills needed to assess whether your idea is appropriate for patent protection, and who can prepare an application for you. Many patent applications that are made are not granted; between 1991 and 2006, around a third of patent applications filed using professional advisers were granted but only around one-in-twenty patent applications filed without professional help were granted. Patent attorneys are legally qualified and independently regulated; some will give you initial advice free of charge. To make the most of this free advice it is recommended that you think about the questions you want to ask beforehand in order that you can gain as much information from the consultation as possible. There are other patent advisers, consultants and inventor-support organisations that may also be able to help or advise you. One important point to remember is that you must not publicly reveal your invention before you apply for your patent. You must keep your idea secret otherwise it may put your chances of being granted a patent at risk. You can find out more about applying for a patent in IP Basics: Do I need a patent? at www.ipo.gov.uk/ ipbasics. 16 IP Basics: The business owner's guide to understanding your IP “ The brand has been very central to everything we’ve done. In the early days it was very much about patents but as the business has grown and become more successful, trade marks have become increasingly important to protect what we’ve built up.” Nick Rutter Inventor and Managing Director of FireAngel www.fireangel.co.uk After graduating from Coventry University, Nick Rutter and a fellow student devised a business model before deciding upon a product to sell. Shortly after, when walking through a typical home scouting for opportunities to modify and manufacture a general household item, they spotted a gap in the market. Whilst most household goods are produced by several well known brands, they noted no such connection with the all important smoke alarm that was hanging loosely from the ceiling. This offered the scope for development they were searching for. Deciding to focus their efforts on home safety products, Nick and his team then set about improving the typical smoke alarm. They knew they needed to deliver something very new in order to make their mark on the industry and after three years of hard work they launched a highly innovative smoke alarm called ‘FireAngel’. The alarm, which fits directly onto most light fittings and is powered by the mains, was the first of its kind and eradicated the common problem of replacing the battery. This additional safety feature proved popular and before long, the FireAngel brand was snapped up by two major retailers in the UK. IP Basics: The business owner's guide to understanding your IP 17 Following the success of the first product, FireAngel have expanded their range of alarms to include ionised, optical, wireless and portable versions. They also supply carbon monoxide detectors and smoke alarms suitable for use near a cooking area, cleverly branded as ‘Toast Proof’. FireAngel currently have more than 50 granted patents, registered trade marks and registered designs and recognise the importance of protecting their intellectual property to maintain a competitive advantage in the market place. “We’ve worked very, very hard and invested a huge amount of money in order to get the business into the position it is today. If someone were to copy us, it would really take a lot of that value away and we need to be confident that we can protect our position in the market place.” Whilst the numerous patents and designs play a significant role in the success of the company, the name FireAngel has been equally as influential. A registered trade mark has established the credibility of a business or product and as such, FireAngel have established themselves as the leading name in fire safety products in an industry that was once faceless. “The brand has been very central to everything we’ve done. In the early days it was very much about patents but as the business has grown and become more successful, trade marks have become increasingly important to protect what we’ve built up.” Today, FireAngel is the main supplier of smoke alarms in the UK, within the retail and fire and rescue services. Last year, the Thermoptek smoke alarm was the highest selling smoke alarm and they currently supply more than 95% of the UK population in partnership with the fire and rescue service. They are continuing to expand globally and the products are currently selling in countries as far away as New Zealand. 18 IP Basics: The business owner's guide to understanding your IP Trade marks for brands Did you know....? Owning the domain name for your website provides no legal rights to use that name as a trade mark. A trade mark distinguishes the goods and services of one trader from those of another. Many people refer to their trade mark as their brand, although a brand is more than just a company’s logo. A brand is a 'promise of an experience' and conveys to consumers a certain assurance as to the nature of the product or service they will receive. Intellectual property rights provide legal protection for some of the most important aspects of a brand. A trade mark can be a word, a phrase, a picture, and can even be a shape, colour, sound, aspect of packaging or any combination of these. You can use your trade mark as a marketing tool so that customers can recognise your products or services. Registered trade marks Registering your trade mark gives you the exclusive right to use your mark for the goods and/or services that it covers in the UK. In addition it: • may put people off using your trade mark without your permission; • makes it much easier for you to take legal action against anyone who uses your trade mark without your permission; • allows Trading Standards Officers or Police to bring criminal charges against counterfeiters if they use your trade mark; • is your property, which means you can sell it, franchise it or let other people have a licence that allows them to use it. IP Basics: The business owner's guide to understanding your IP 19 Did you know....? If you want advice on building your brand, registering overseas or more complex aspects of the trade mark process you should consider seeking professional advice from the Institute of Trade Mark Attorneys www.itma.org.uk 20 Trade marks are registered by the Intellectual Property Office in the UK and other bodies worldwide, for a fee. They must be renewed every ten years, but can be renewed indefinitely. Registered trade marks can be identified by the ® symbol. The most effective trade marks are those which are ‘distinctive’ for the goods and services they seek to protect. A ‘distinctive’ trade mark will enable the consumer to differentiate your goods or service as being different from someone else's. Not everything can be registered as a trade mark. Trade marks which can be difficult to register include those which: • describe the products you sell or the services you offer, for example ‘Cornish Clotted Cream’; • are incapable of being perceived as an indicator of commercial origin by the customer, for example, the phrase ‘Putting Customers First’; • have become customary in your line of trade, for example ‘China Garden’ for Chinese restaurant services; • include a specially protected emblem, for example, the ‘Red Cross’ or the ‘Olympic Rings’; • are offensive to the public, for example, trade marks which contain taboo words or pornographic images; • deceive the consumer. There should be nothing in the mark which would lead the customer to think that your product has a quality it doesn’t actually possess, for example, use of the word ‘Organic’ on goods which aren’t organic; IP Basics: The business owner's guide to understanding your IP • are three dimensional shapes which are typical of the goods (or part of the goods) you are interested in, for example, the shape of a simple plastic bottle for drinks; • are three dimensional shapes which are designed in order to perform a technical function (such shapes are more suitable for patent protection). Did you know....? Registration at Companies House provides no legal rights to use that name as a trade mark. Provided that your trade mark does not fall into any of the aforementioned categories, there is a good chance that it will be considered acceptable for registration. If, after being published, your trade mark does not then attract any objections from other trade mark holders, it will be registered. This process usually takes around three months. Unregistered trade marks If a business doesn’t register its trade mark, it may still be able to take action if someone uses the mark without permission by using the common law action of passing off. However, reliance on an unregistered trade mark for protection of your brand and reputation would not be a recommended course of action. It can be very difficult and expensive to prove a passing off action. Broadly speaking, to be successful in a passing off action the trade mark owner must prove that: • there is protectable goodwill in the mark; • there is a misrepresentation of the mark, and • that misrepresentation caused damage. Without misrepresentation there is no passing off. This is a complicated area of law and in any such situations it would be wise to seek advice from an IP Attorney. For more information on trade marks, including how to search for existing registered trade marks and how to register internationally go to www.ipo.gov.uk/tm IP Basics: The business owner's guide to understanding your IP 21 “ If you have an idea and it’s unique, do lots of research and before introducing it to the market get it protected. There are so many big companies who can make it happen in a few weeks and all that investment and work will be for nothing.” Malin Granfors Designer at www.bradadoo.com Malin Granfors came to the UK at the young age of 19. After working in catering and travelling the world, Malin returned to Sweden to study for a year, during which time a friend in the UK was celebrating their birthday. Unfortunately, Malin didn’t have enough money to send them a present and felt that the standard greetings card was impersonal and boring, so she got creative. Malin took inspiration from the traditional playground game often referred to as a ‘fortune teller’. One person writes various messages inside a folded piece of paper and then, using numbers chosen by another person, reveals their ‘fate’. Of course, Malin put her own stamp on the concept and used her artistic skills to decorate the piece. She tailored the content to her friend which added both personal and sentimental value and ensured the design was lightweight and folded flat so it could be sent via the general post. Needless to say, Malin’s friends loved the idea and this was how the ‘chatterboxes’ were born. One night shortly after, Malin had another eureka moment. She jumped out of bed and started cutting away at one of the chatterboxes, adding a 3D design to the outer edges which stood out from the chatterbox like a pop-up book. This unique touch 22 IP Basics: The business owner's guide to understanding your IP inspired Malin to search the IPO’s designs database for any similar designs that were already registered, so as not to infringe anyone’s work or to waste time on a product that was already available. When she realised that her design was unique, she decided to protect her intellectual property before going any further. Although Malin had planned to register her design in the UK, she was now living between the UK and Sweden and wanted to ensure that her design was protected in both countries. She therefore chose to apply for a Registered Community Design (RCD) which protected her intellectual property in the UK and Sweden, plus many other countries in the European Union. As Malin’s business began to grow and the range expanded, the additional protection proved invaluable, especially when importing and exporting goods. Malin strongly recommends getting the correct protection before going into business to prevent others from exploiting your work, time and money. “If you have an idea and it’s unique, do lots of research and before introducing it to the market get it protected. There are so many big companies who can make it happen in a few weeks and all that investment and work will be for nothing.” Malin’s chatterboxes have become increasingly popular with all age groups and there are now many different designs to choose from. By registering her intellectual property in the early stages, Malin has protected her assets in the best way possible, allowing her business to develop and expand globally. At present Bradadoo, the company she runs with her long term partner, are trading as far as New Zealand and Canada and Malin is currently working on a Christmas cracker chatterbox. IP Basics: The business owner's guide to understanding your IP 23 Did you know....? UK registered designs need to be renewed every five years and last for a maximum of 25 years and UK unregistered design right lasts between 10-15 years. Design for appearance Design describes the appearance or ‘look’ of manufactured products. There are two types of protection in law; registered design in which your designs are examined and registered by the Intellectual Property Office or other international bodies; and unregistered design right which is automatic but offers less protection. Unregistered design right You can benefit from automatic design rights in the UK (UK Unregistered Design Right) and in Europe (Unregistered Community Designs). These provide a similar kind of protection to a registered design, but are limited in certain ways, can be harder to enforce and have a much shorter duration. You should carefully consider whether it would be wise to rely solely on unregistered design right, because where disputes arise you may have to show evidence of the existence of the rights, and it is important to note that unlike registered designs, it is your responsibility to prove intentional copying. 24 IP Basics: The business owner's guide to understanding your IP Registered design Did you know....? If you are a designer, designer maker or design innovator, Anti Copying in Design (ACID) offers practical advice and specialist support to help you understand and manage your intellectual property at www.acid.uk.com. A registered design gives you a legally enforceable right to use your design to gain a marketing edge and prevent others from using it without your permission. Design registration protects the appearance or ‘look’ of a product providing it is new and has individual character. The design must have a special shape, configuration, pattern or ornamentation to be registered. Some people confuse patent protection and design protection. Designs protect the visual appearance of a product whereas a patent protects a technical product and how it functions. A registered design can’t be for an idea or concept, it is a ‘what you see is what you get’ right, so it’s important that the registered design application contains images of the product or the packaging you wish to protect which are identical to those which are actually placed on the market. Some products can’t be registered because they don’t fit the criteria to be considered a design. In general terms these are products which are shaped in a particular way solely to achieve a technical function, or products which are shaped in a particular way solely to fit to something else. You also can’t register designs which are immoral or illegal, or contain a protected emblem such as the Royal crown. There are fees for registering a design, and the process takes around four weeks providing your design meets the above criteria. You can find out about more about designs at www. ipo.gov.uk/design IP Basics: The business owner's guide to understanding your IP 25 “ The work we produce becomes very personal to us. We don’t tend to treat it as a job, this is our life” Steve Benbow, Director www.videowales.com Video Wales was formed after a group of friends, all former photographers working in different fields, recognised that the industry was moving more towards video. To keep up with the market they pooled their skills, equipment and experience to form a filming company and registered the name Video Wales. Their work is currently broken down into three areas; corporate videos for businesses, documentaries and dramas. Steve Benbow, Director at Video Wales, explains how the creative process starts by taking a brief from potential clients. Once they have determined the client’s expectations, the Video Wales team then research the client and their business model and combine their ideas into a unique package, sometimes using extracts of work to demonstrate their proposal. As copyright is automatic and exists when a work is fixed in some form (i.e. in writing or on film), Video Wales do not need to register their work as you would with a patent, trade mark or design. However, whilst commissioned work is generally owned by the organisation that created it, the contract between parties may state otherwise. It is therefore vital that Video Wales determine copyright over their work in the first instance so that their work is not exploited and the other party are not misled. “If the work is commissioned, you really need to sit down with the commissioner and work out what each person gets... so you all understand where you are.” 26 IP Basics: The business owner's guide to understanding your IP In an effort to prevent contractual disputes, Video Wales ensure the terms and conditions are clearly displayed on their website, outlining copyright, licensing and the way in which the company works. From the initial dealings with the client they keep a paper or electronic trail of all correspondence and contracts, which is carefully logged in case they need to be revisited, a measure that Steve deems essential for businesses. “Although it’s not the most glamorous part of the business, it’s very, very important because companies, in particular small companies that don’t have large financial backing, get into serious problems if there is any legal action.” IP Basics: The business owner's guide to understanding your IP 27 Steve clearly recognises the difficulties of protecting your work in the current climate, especially for young filmmakers who may feel forced to sign a contract not in their best interests to keep them afloat. In these instances, Steve urges them to retain their rights as they may regret their decision in years to come. “I think it’s very important, in particular for young students leaving film school, from day one they are very aware of copyright, what it means and what it will mean to them years down the line. If they maintain copyright they will be in a much better position.” Steve then emphasises the significance of protecting their work, both for their personal and professional needs. “The work we produce becomes very personal to us. We don’t tend to treat it as a job, this is our life.” He also adds “for us, all we really have is our work and the past work that we’ve done. That’s all we can show to somebody to try and get more work, so it’s very important that we control that work and we have access to it and the rights to it. From day one, we ensured we had that control.” Video Wales have now been in existence for over four years and have recently moved to a bigger studio with more equipment, allowing them to take on larger projects. They have just completed their biggest project to date for an International aerospace company and are about to embark on a drama documentary, solely produced, edited, distributed and promoted by Video Wales. 28 IP Basics: The business owner's guide to understanding your IP Did you know....? Counterfeiting and piracy relate to certain trade mark and copyright infringements respectively. These are criminal acts, and Trading Standards, HM Revenue and Customs and the Police have powers to seize and destroy infringing goods and to bring criminal proceedings Copyright for creative works Copyright gives the owner of a creative work the right to exclusively control and exploit its use. It covers books, art, music and sound recordings, photographs, software, databases, films and print, radio and television ads and other promotional materials. Copyright protects the expression of, but not the idea behind a work. For example, the text in a manual is covered, but not the ideas conveyed in it. The term of protection for most copyright material is the life of the creator, plus 70 years from the date of their death. In the UK copyright exists automatically when something is written down or recorded; there is no formal registration. It is a good idea to put the letter ‘c’ in a circle (©) at the end of your work, followed by the year, for example, © John Smith 2013, to ensure others know that copyright in the work is claimed by the author. Additionally you could lodge your work with a bank or solicitor. It is important to note that this does not prove that a work is original or created by you, but it may be useful to be able to show the court that the work was in your possession at a particular date. IP Basics: The business owner's guide to understanding your IP 29 Copyright and your business Did you know....? The IPO runs a mediation service for IP disputes. Mediation is a type of alternative dispute resolution, a way of resolving disputes without going to court. It is cheaper and quicker than litigation and the outcome is usually beneficial to all parties. You can find more information at www.ipo.gov.uk/ mediation. Businesses create and use copyright works all the time – perhaps without even realising it. It is important for a business to understand how to commercialise and protect its copyright works, as well as the ways it can make use of copyright works belonging to others. If you commission third parties to create copyright works for your business it is really important that you agree on who will own the copyright before the work is created. Some businesses commission work only to later find out that the creator still owns the copyright, meaning the business is limited in how it can use the work. You should always check the terms and conditions, and if you are unsure you should check with the business from which you are commissioning the work. Don’t use other people’s copyright work unless you have permission. The owner has the right to take legal action to stop the infringement and to seek damages. For more information about copyright, please visit our website at www.ipo.gov.uk/copy 30 IP Basics: The business owner's guide to understanding your IP Everyone owns intellectual property. What do you own? Straightforward free guides to understanding your IP. Free, interactive and basic IP training for professionals who advise businesses. Free, quick and easy IP information at your fingertips. Assess your own business for free with a tailored report to identify and value your IP. Reach your potential with quality and accredited IP adviser training. Achieve your potential at: www.ipo.gov.uk/ business Businesses create and use intellectual property all the time, perhaps without realising it. The value of your IP – whether it’s a trade mark, patent, design, copyright or trade secret – can far outweigh the value of your physical assets. Keep ahead of the competition with the Intellectual Property Office’s IP for Business tools and guidance which can help you create value from your ideas, turning inspiration into sustainable business success. The Intellectual Property Office promotes innovation and growth by offering a vibrant programme of activities and informed advice and support to business. follow us: Concept House Cardiff Road Newport NP10 8QQ Tel: 0300 300 2000 Fax: 01633 817 777 www.ipo.gov.uk For copies in alternative formats please contact our Information Centre. When you no longer need this booklet, please recycle it. DPS/C550/12-13
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