The first thing to address is the common misconception within the law of intellectual property. Many believe that IP law can protect your ideas whereas in reality, the law only provides protection for the development and expression of an idea. However, there are options available for protection of ideas when they have been expressed.

Copyright

Copyright law is used to protect the original work of an author. In the UK there is no formal application process, no fees that need to be paid, and no register of copyright works. Individuals who have created an original piece of work will automatically benefit from the law of copyright. However, there are of 3 requirements that must be met. Firstly, the work must fit the criteria described in the law (Copyright, Designs and Patents Act 1988, Section 1). Secondly, the work must be original and thirdly, it must be fixed in a tangible medium if possible. 

Subject matter

Under the CDPA 1988, there are many provisions describing a range of categories of works that can be protected. Section 1 outlines many of these including works that are: literary, dramatic, musical, artistic, sound recordings, films/broadcasts.

Originality 

There are differences in what constitutes an original piece of work between the EU and UK law. Despite Brexit, it is most sensible to stick with the EU standard developed before the UK’s withdrawal from the EU, since this has been retained as part of the law in the UK. In comparison to the UK, the EU standard for originality offers a higher level of protection as any work that is the “authors own intellectual creation” will be protected by the law of copyright. In the case of Eva-Maria Painer, the European Court of Justice stated that even a photograph can amount to originality for the purposes of being the authors own intellectual creation as the photographer has control to assert their own creativity over the image.

Fixation

This element is simply to say that each piece of work must be produced, written, or recorded in a fixed medium. Although, this element is only applicable to literary, dramatic, and musical works as state in section 3 CDPA. Other works, such as movies and artwork are not specifically subjected to this statutory requirement as they are already produced in a fixed form.

If an author expresses their idea to fit these elements, it can be protected by copyright law.

Patent

Patents are used to protect new inventions such as a new good or service from being copied or used by others. A patent allows the owner to take action against others who use their invention without a license or permission to do so.

Applying for a Patent

To obtain one, individuals must apply to the UK Intellectual Property Office (UKIPO), providing their name, address, and a description of the invention. Within a year of the filing date, subsequent claims defining the protection that one seeks and an abstract summarising the invention, must be submitted. The fee for this is £60

The requirements

Whilst considering any application, the UKIPO will ensure if all the requirements for a patent are met. Firstly, the invention must pass the test for novelty. This simply means that the invention is unique and new. Previous publication or telling others before an application has been made to the UKIPO, are likely to reduce the chances of obtaining a patent. Secondly, the subject matter must involve an ‘inventive step’ in the sense that the differentiating element must not be obvious or already known. Also, the invention must not fall into an excluded category such as works of art or theoretical research. Lastly, the invention must have some form of industrial application. This requirement is lenient as it is not necessary for there to be a market to exploit.

Publication and detailed examination

After 18 months from the filing date, it is automatically published and available for anyone to look at. At this point the patent is not yet granted, thus use of the ‘invention’ cannot be prevented. However, 6 months after publication, the UKIPO carry out a detailed examination following payment of a £150 fee by the applicant. They will highlight any issues with the requirements, which the applicant must review and respond to. If the UKIPO can agree that the invention satisfies the requirements, the patent will be granted and a record of this is published in the UKIPO journal.

Design Rights

Design rights safeguard a product’s appearance. This might refer to the entire product or only a portion of it, depending on how the product’s lines, colours, shape, texture or materials were achieved. In UK law there are several protections for this including, registered and unregistered designs. Similar to trademarks, design rights can be registered in the UK, EU or even globally with a single application to the European Intellectual Property Office or Worldwide Intellectual Property Office. 

Considerations before applying

Again, a requirement of novelty is present. The design cannot be the same as any previous design, it must be new. The design must have its own individual character, meaning that it has a unique impression to consumers of the intended target market. Also, the design cannot be purely functional as this would create a monopoly. For a single entity to own the design right for a product and the right is one that is functional, it would result in creating an unfair advantage to the single owner of the right.

Applying 

The process usually takes a month and is relatively inexpensive. Standard applications are £60 whilst any application that is deferred for up to 12 months is £40. Any application made will be subjected to thorough checks against other similar designs on the market. If there are no similarities with existing designs, the UKIPO will register it. 

Trademark and passing off

A trademark is a symbol or design that allows consumers to recognise the source of certain goods or services. An application must be submitted to the UKIPO in order to register a mark, who will review the application to determine whether it complies with the registration requirements.

The requirements and restrictions

A fundamental requirement is for the mark to be distinctive from any other mark. There are several restrictions for what can be coined as a mark for example, marks cannot be based on anything that consists of descriptions, deception, surnames or geographic locations. If a mark involved any of these things, it would be against public interest as it would restrict our everyday freedoms. For example, a trademark on the word “SWINDON” would prevent people from being able to use Swindon in their own works. Additionally, trademarks must be in use. This is to prevent stockpiling of marks by owners. The application fee in the UK is £170 and a further fee of £40 can be paid to the WIPO to register the mark globally.

Step by step process

The first step is to check if the mark does not already exist by searching it on the UKIPO database available publicly online. Then to apply, you must classify the mark in one of the 45 classifications available. Within 5-15 days the UKIPO provide feedback in an examination report. If there are any objections the applicant must resolve these before continuing to the publication stage. If there are no issues from any 3^rd party after 2 months of publishing the mark, the mark is registered 2 weeks later. A certificate is awarded and renewal fees of £200 are paid every 10 years.

The link with the law of passing off

This is similar to trademark, however this part of the law offers protection without having to register the mark with the UKIPO. If a mark has enough ‘goodwill’ amongst the consumer market, it can be protected from being copied by others. the concept of goodwill refers to the level of strength a mark has in connection with the source of origin. For example, the swoosh and tagline “Just do it” is strongly associated with the sportwear brand NIKE. Therefore, even if this was not a registered trademark, this would still be protected under the law of passing off.