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Whose Intellect? Whose Property?
‘Intellectual property rights’ can be a complex subject. However with even a basic understanding of IP terms and an awareness of the issues to look out for, you will be better equipped to protect your rights and maximise the potential of your intellectual property.
Copyright relates to original creative works, such as literary, dramatic and artistic works, films, sound recordings, broadcasts, etc. reduced to material form. Ideas do not hold any copyright – only the record of that idea. Duration of copyright varies depending on the type of work, from 25-70 years. There is no formal registration process.
Registered design right is also covered by copyright and applies to industrially manufactured designs with ‘eye appeal’ such as jewellery, designer clothes and furniture. Copyright duration is 5 years from registration, renewable to maximum of 25 years.
Unregistered design right applies to purely functional original designs with no aesthetic appeal like industrial gadgets, car parts, ordinary furniture, and cutlery. Duration of right is 10 years from date of marketing the product.
Trademarks are any distinctive sign or mark which can be drawn, and distinguishes goods and services from others e.g. using names and logos - "McDonalds"; shape of goods or packaging - Coca-Cola bottle; and phrases and slogans - "I can’t believe it’s not butter. Duration of right is 10 years from registration, and can be renewed on payment of fee.
Patents relate to inventions which are novel, involve an inventive step, and are capable of industrial application. For example, products that work in a new way like Dyson Vacuum Cleaner. Duration of patent is generally up to 20 years but must be renewed 4 yearly by payment of fee.
When do I need to think about intellectual property?
The answer is ‘all the time’, but particularly in the following situations when you should be aware of your IP rights;
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whenever you have a new idea that might be patentable
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when an employee who has access to your IP leaves the business. You as the employer own the IP in anything produced by an employee, such as a draughtsman, in thecourse of his employment. If s/he joins a competitor, make sure they know they cannot use ideas belonging to you.
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when subcontracting work with an IP element, such as producing designs or drawings, whether you are subcontracting the work to a third party or taking in such work. The IP in drawings belongs to the person who produces them, not the person who orders them!
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when customers order something from you, could it breach someone else’s IP rights? If so the owner of those rights may have a claim for damages against you, as well as against your customer. A typical case would be a client asking you to manufacture something in the shape of Mickey Mouse.
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when building new premises; you may own the building, but the IP in the plans and designs belongs to the architect. Make sure the rights are assigned to you once the contract is complete.
What can I do about someone stealing my ideas?
There are three main remedies for breaches of IP rights.
Recovery of offending material.
This can be done without warning by asking the court for an order for production of documents which tend to suggest that your IP rights have been breached so that you can use them to support a case. This can be very expensive but very effective.
Interdict against breach.
Basically an order telling your competitor that he must stop copying your protected work. This can be asked for on an interim basis while the court determines the merits of the case. If you are unsuccessful however, you may be found liable in damages.
Damages.
If a competitor has breached your IP rights you are entitled to an award of damages, either based on the amount of business which you have lost, or to have the competitor pay over the profits they have made from exploiting your protected work.
It is always better to avoid getting involved in court actions about IP rights, it is possibly one of the most expensive areas of litigation there is.
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