How can my business protect designs, creative ideas and inventions?

If your business innovates it may create designs, inventions and creative works that should be protected to ensure they can’t be copied by competitors.

Protect your business’s brand – such as logos, colour ways and other distinctive elements that are identifiable as uniquely yours.

However, as well as a business’s visual identity there are several different aspects of intangible property which your business may create or own such as:

• Original literary, dramatic, musical or artistic works;
• Product designs
• Inventions

This can cover works created by your business, such as the text and images on your website, the content of your brochures, the photographs on your social media, your product descriptions, your labelling, your logo, a play you have produced or written, a film you have recorded or perhaps a character you have devised.

How can I protect by business’s artistic, literary and dramatic works?

There may be some crossover between your works and your brand (for example your logo) but whilst you can protect a logo by way of trade mark registration as discussed in the article referred to above, copyright protection, which is available for artistic, literary and dramatic works is an automatic right. In some jurisdictions, such as China, you can register copyright in a work but in the UK, copyright is an automatic right and not registerable.

You can draw attention to the fact that the copyright in, for example, the text and images on your website, belong to your business by using the © symbol but whether you use it or not does not create the right. Using the symbol is, however, a deterrent to would be infringers.

It is prudent to keep an eye on your competitors’ market facing material, such as their labeling and websites, to ensure they are not using your copyright protected material. As set out in the article referred to above in relation to brand protection, if a competitor is using a logo similar to yours then it is likely to damage or dilute your brand. Use of copied images or photographs can create the impression that, for example, your competitor carried out work which was in fact the work of your business, so again is them gaining an unfair advantage by trading off your hard work.

Who owns the copyright?

Generally copyright will be owned by the person or business who created the works. There are exceptions to that. Usually employees who create IP rights, including copyright protected works, in the course of their employment will not own the copyright – it will be owned by their employer. This common law position can be reinforced through your employment contracts to ensure employees are aware they do not own the rights in works they are creating.

It is a common misconception that if you commission works from a third party, for example if you pay a photographer to take photos for your marketing material, or a copyrighter to create text for your website, that you will own the copyright in the images/text.

That is not correct – unless you agree with the third party you are commissioning that the IP rights will pass to your business, it will remain with the third party. Your business will generally have a licence to use the image (even if only an implied licence) but will not own it.

It is therefore a good idea to ensure when a third party creates work for you that the terms of the commission include an assignment of the IPR to the business.

How long does copyright last?

Duration of copyright depends on the type of work. The usual timescales for the most common types of works are set out below but these can vary in certain circumstances.

What can I stop third parties doing with my copyright protected work?

 If you own a copyright protected work, others way not:

• copy your work.
• distribute copies of it to the public including for free and including on the internet
• rent or allow others to borrow copies of your work
• perform, show or play your work in public
• make an adaptation of your work (e.g. building a model to your design).

How can I protect my business’s designs? 

An innovative design for say, a piece of furniture is, in principle, protectable by the following intellectual property rights:

• registered designs – to the extent that the design is novel
• unregistered design rights - to the extent that the design is novel (although NB the standard of novelty may differ from the above)

 Registered designs 

Registered designs can protect both 3D and 2D designs, and can also protect one-off designs. The design as registered is protected across all sectors and is not restricted to any specific product, not even the product to which it was originally applied.  Parts of articles can be protected as designs, provided that they are visible in normal use. 

The design to be registered must be new, i.e.  no identical or very similar design can have been disclosed anywhere in the world more than 12 months prior to the date of application. 

The design must have "individual character" i.e. it must convey a different overall impression from any previous designs. However, “different” does not mean “clearly” different and the design need not have artistic merit. 

Specific designs are excluded, most importantly features which are solely dictated by the product's technical function, features that are necessary to allow an article to fit another article (“must-fit”).

Protection is granted for five-year periods up to 25 years. Registration is relatively quick and cheap, making this an attractive form of protection. 

Unregistered designs 

There are also unregistered design rights available in the UK.

UK [unregistered] design right protects an original shape or configuration of a purely functional product, regardless of aesthetic appeal such as agricultural tools.  It does not cover surface decoration.  It lasts for the lesser of 10 ten years from first marketing or 15 years from creation of the relevant design, and is subject to licences of right in the final five years of the term.  “Original” does not have the same meaning as “novel” and will not cover commonplace designs. The right is not available to all designers and there are complex provisions relating to qualification by national status.  Exceptions include:

• principles of construction;
• “must fit” and "must match" features 
• surface decoration 

Ownership

The author/creator will be the first owner except:

• where the author/creator was acting in the course of employment, when generally the employer will own the design rights; and
• where, in the case of UK unregistered design right, the author/creator has transferred the rights to someone else by a “present assignment of future rights".

Note that an independent contractor is not an employee and will be the first owner of IP in any work he or she creates. He or she may agree by contract that the IP will be transferred to the party for which he or she is contracting but this requires specific agreement and action and is not automatic. However, the mere fact of assisting in the creation of an article or design does not mean that an individual is the creator or author of that work. Much may depend on the particular circumstances of a case, and it is therefore always sensible to agree express provisions as to the ownership of IP rather than leaving matters to the default position imposed by law.

In the absence of ownership, a party may be satisfied with an appropriate licence (whether express or implied) to use the IP in question. Where one party has paid another to assist in the creation of a work, it is likely that the paying party will have at least an implied licence to use the work and its associated IP for a limited purpose. It may be possible to imply a wider licence (and, indeed, occasionally to imply legal or beneficial ownership) but this will require substantial cogent evidence, which an express agreement would obviate.

How can I protect by business’s inventions?

Business inventions, such as new technology, or products or manufacturing processes, can be protected by a patent. There are categories which are excluded from the patent regime such as a method of medical treatment or diagnosis, software with a ‘non-technical purpose (e.g. a game playing app), a way of doing business or thinking, the way information is presented, mathematical methods, art and scientific theory.

 Once your invention is protected by a patent you can prevent third parties coping your patented product. A patent will last for up to 20 years and once expired, your monopoly ceases and others can use the technology you had protected.

This means businesses are incentivised to develop new products but competition is not indefinitely stymied. 

A patent can be used to generate revenue for the business by cornering the market and for example is often a key cog in the investor machine. If your business can prove to an investor it is the only business which is allowed to manufacture and/or retail this e.g. technology then that will doubtless increase investor confidence. 

A patent can also enable a business to negotiate lucrative licencing or franchising deals with other businesses.

It is also a means to preventing others from diverting potential revenue to their own businesses. If you are the only business able to produce the patent protected goods/technology then a third party can’t come along (whilst the patent subsists) and copy your invention and take part of the market with them.

You can only protect something which is truly novel, i.e. new, so once the invention is out there in the public knowledge you can’t protect it using a patent. That includes if you have made your own disclosures about the invention. It is likely you may need to speak to third parties, such as financiers, perhaps manufacturers etc. before you are at the stage you know you have something you want to protect. It is key therefore to ensure all third parties have signed a Non-Disclosure Agreement before you speak with them so that the novelty of your invention is preserved. 

To be patentable, it must also include or involve ‘an inventive step’ – so it isn’t an obvious extension or development of something already in existence.

Finally, it must be something which is either a technical process, a method of doing something or something which can be made and used.