Hamilton Pratt

Protecting Your Ideas, Names and Designs in the UK

Protecting an idea is not possible unless it is recorded in some way and has gone beyond simply being a thought or concept.  Possible protections are:

Patents:  A patent protects the rights attached to a particular product or process. In practice, relatively few franchisors obtain patents.  As yet there is no single EU patent although the European Patent Office can issue a bundle of patents (one for each EU member state).  Otherwise, patents in the UK are granted and regulated by the Patent Office for new inventions which are capable of industrial application.  A patent gives the owner 20 years' exclusive rights but in return the owner must register details of the product or process publicly.  The owner of a patent may sue for damages where its patent is infringed even when the person in breach is not aware of his actions.

When making an application, it is possible to establish a “priority date” from which the invention, if successful in its application to the Patent Office, will be afforded protection even though the full application is not filed until a later date.

Trade marks and service marks:  Registering a trade or service mark allows a business to protect the identifying symbols or characteristics of its goods or services.  Trade mark registration is dealt with by the Trade Marks Registry (which is part of the Patent Office).  A registered trade mark owner has exclusive rights to use the mark for an initial period of 10 years, although this period is renewable indefinitely.  However, a registered trade mark owner may lose its rights if it does not put the mark to genuine use in the UK within the first five years after registration or if it does not use the mark for an uninterrupted period of five years.

The Community trade mark system has been designed to complement EU member states' national systems of trade mark registration.  Accordingly, the UK benefits from the Community trade mark system which means that a UK application has effect in all other EU member states.  This is operated by the European Trade Marks Office.  The Community trade mark covers all countries of the EU and keeps the formalities of registration, costs and management to a minimum.  It requires a single application in one language and can be registered through the UK Trade Mark Registry or through the European Trade Mark Registry.  Otherwise each country operates its own trade mark registry and requires local registration.  However, because the UK is a party to the Convention of Paris for the Protection of Industrial Property, an applicant for a trade mark in the UK may, within six months of the UK filing date, apply for registration in other member states and the application in those states will be deemed to have been made at the date of the UK application.

Copyright: Broadly, copyright law protects original work which is recorded, whether in written (eg books, plans, designs) or non-written form (eg computer software, databases or programs, CDs).  Copyright law gives the originator of the work or subsequent owner the right to control the commercial exploitation of the work and arises automatically.  For copyright to exist, the work must be a “work” (and not, for example, a technique which should be protected by a patent), there must be some degree of originality (although there need not be any novelty) and a certain degree of effort must have been used to produce it.

Copyright is an unregistered right and there is therefore no official register.  The copyright owner need not take any specific action to activate copyright protection – it is automatic and it is not even legally necessary to apply the ? device.  However it is usual to do so as it signifies the owner's intention to asserts it rights.  Copyright protects literary and artistic works (eg instruction manuals, computer programs, logos and technical drawings) for up to 70 years.  Copyright protection for databases lasts 15 years from the end of the calendar year either of completion of the database or during which the database was first made available to the public, whichever is the longer.  However, the period can be re-started by the input of “substantial new investment”.

Design rights:  It is possible to register a design for either the UK or the EU which gives the owner exclusive rights over the chosen "product".  Products can include packaging, logos, display stands and trade marks.

It is also possible to enjoy unregistered design rights.  These arise automatically if the article, or part of it, comprises a feature or shape or configuration which is “original”.  It does not require any element of novelty.  The protection lasts for a shorter period than for registered design rights.