08 Nov Which intellectual property right is relevant and when should you file?
There are four main types of Intellectual Property rights: patents, trade marks, designs and copyright. With all four having different requirements for registration, plus varying time scales associated with them, it can be difficult to know which intellectual property right is relevant to you and when you should file. In this article, the Serjeants team provides a comprehensive overview of each right and their associated timescales.
A patent protects an invention, such as a new device or process. To be patentable, an invention must be new and not obvious at the time when the patent application is filed. It must not have been disclosed to the public anywhere in the world, even by the inventor, before the filing date of the application. Certain types of inventions are excluded from patent protection in most countries, e.g. inventions that cannot be applied in industry; methods of medical treatment; and non-technical inventions such as ways of doing business, carrying out mental acts or presenting information.
Obtaining a patent usually takes three to four years from filing, although it can be much quicker or much slower. The maximum life of a patent is 20 years from the initial filing date. However, in most countries, annual renewal fees are payable to maintain a patent in force.
Trade marks act as an indication of origin as a way of identifying the services or products of a business. A trade mark can be a word, logo, shape of product packaging, a sound, a colour or even a gesture. Trade marks must be distinctive and shouldn’t describe the product or service that you are trying to register.
There is no time limit as to when you can register a trade mark; however, you should always check that the mark is free before you start using it. It is advisable to protect a trade mark as soon as possible to ensure third parties do not obtain a registration first.
In most countries, a trade mark registration should be renewed every 10 years.
There are two types of design protection in the UK: registered and unregistered.
Registered design – the design of a product can be registered in the UK if the design is new and it gives a different overall impression from known designs. The product must be visible in normal use to be protectable. Examples include patterns of fabric and the shapes of garments, toys, household or industrial articles. The deadline for filing an application for a registered design is one year from the date on which the design is first disclosed to the public.
A registered design is registered for five years initially and can be renewed for further five year periods up to 25 years in total. A registered design allows you to stop anybody making or selling a design which provides the same overall impression, regardless of whether that design is a copy or not.
Unregistered designs – this is not a registered right and therefore you do not have to apply to the UKIPO for this right. It comes into existence automatically when a design document or model is created.
Generally, UK unregistered design right lasts 10 years from the end of the year in which the design is made available to the public. For the first five years you can stop third parties from copying the design. For the last five years, you cannot stop third parties copying; but you are entitled to a reasonable royalty from anybody doing so.
This is a legal right, owned by the creator of an original work, to prevent the work being copied by others without permission. It comes into existence automatically and applies to both published and unpublished works. Works protected by copyright can include drawings, photographs, written works, computer programs, sculptures, music and films.
Copyright lasts for 70 years from the death of its creator.
If you have a brand or logo that requires protection, you should seek registration through a trade mark. If you have an invention that has not yet been disclosed to the public, you may be able to obtain a patent. For packaging or the look for a product, you should look at designs. Finally, any original work may be protected by copyright.