Innovation and design is the lifeblood of many businesses with much time and effort being spent trying to stay one step ahead of the competition. Intellectual Property (IP) rights are one way of maintaining the advantage carved out by innovation. This article focuses on making the most of your IP budget, considering the different IP rights that are available and how to choose what is right for you and for your budget.
‘Intellectual Property’ refers to items of knowledge or information, which can be incorporated into tangible objects. It is most commonly associated with inventions, designs, brand names, as well as literary and artistic works. A number of legal rights exist to protect these creations, and they are patents for technical inventions, trade marks for brand names, industrial designs to protect the visual appearance of a product, and copyright to protect literary and artistic works.
Patents
If your business has made an invention, such as a technical improvement to some existing technology, the chances are that a patent is the most appropriate form of protection available as this should be able to protect the underlying concept and not just the specific product that you produce or process that you use.
A patent gives its owner the right to prevent others from exploiting the protected invention. With its potential 20-year term, a patent is a potentially powerful legal right and commercial tool for protecting your innovation. However, because of the potency of patent rights, the process of obtaining a patent can be a long one, with patent applications undergoing close scrutiny by the patent offices to ensure that the invention for which protection is sought is both new and not obvious. Therefore, seeking patent protection for an invention can be a long-term investment.
When seeking patent protection it is essential to understand the costs involved so that there are no nasty surprises and to ensure that you get the best protection for the money you are willing to spend. It is imperative that your patent attorney has a thorough understanding of your budget, as well as your invention and your commercial plans and aspirations!
If you have developed a product with a relatively limited life-span, for example of just a couple of years, the time it takes to obtain a patent and the associated costs may not be justified and other Intellectual Property rights may be more appropriate for protecting your investment.
Trade marks and design rights are Intellectual Property rights which are more readily and more quickly available than patents and, whilst the protection that they offer is obviously not the same as that afforded by a patent, it may be effective in deterring competition and maintaining your competitive edge.
Registered designs
An industrial design is essentially the ornamental or aesthetic aspect of a useful article. This means that it will reside in the shape, pattern or colour of the article. The design must have a visual appeal and it must be produced by industrial means (rather than being a one-off work of art).
It is well-established that consumers these days are strongly influenced by the visual appearance of products. Indeed, to some consumers, the appearance of a product is more important than its ability to perform its intended function! As a result, more and more effort is being put into the design of products and registering a design is an effective way to protect that visual appearance which is often a key element that will determine the commercial success of a product.
In order to qualify for design registration, a design must be new or original, which means that the design must differ significantly from known designs or from combinations of known designs. It is also generally a requirement that the design of the product must not be solely dictated by its function.
The term of a design registration differs between countries but usually ranges from a maximum of 10 to 25 years. Often this is more than adequate to protect the visual aspect of a product given how fashions change.
In the past, it was necessary to apply for design registration in each individual country where protection is sought. However, in recent years, two systems have been set up to simplify the registration procedure and to reduce the cost of design registration. The Registered Community Design is a single right that has effect across the European Union. The Community Design lasts for up to 25 years and provides substantial cost savings compared to obtaining national registrations in individual European countries. In addition, the International design registration system allows an applicant to file a single international design application, requesting protection of the design in as many countries subscribing to the system as the applicant wishes. Once again, this system provides significant cost savings, making registered design protection a very cost-effective intellectual property right.
Trade Marks
A trade mark is a distinctive sign which identifies the origin of goods or services. Today’s consumers are extremely brand-aware and they rely heavily on trade marks to help them identify the source of a product or service and trade marks are often key to their purchase choice.
A registered trademark provides protection to the owner of the mark by ensuring the exclusive right to use it to identify particular goods or services. As a business builds a reputation with consumers, it is essential that this is protected and a trade mark can help achieve this.
There are relatively few restrictions on what may be registered as a trade mark. It may be one or a combination of words, letters, and numerals. Trade marks may consist of drawings, symbols, three-dimensional shapes (such as packaging), audible signs (such as music or vocal sounds), fragrances, or colors. Essentially, anything that can uniquely identify the owner may potentially be registered as a trade mark.
Almost all countries in the world register and protect trade marks. In order to avoid the need to register marks separately in individual countries, there is a system of international registration of marks which covers a large and ever-growing number of countries. In addition there is a Community trade mark system covering all of the countries of the European Union.
Sian Gill is a partner at Venner Shipley LLP