Blogs
In this blog, the latest in our series of intellectual property blogs, we explore the differences between various intellectual property rights. Intellectual property rights is a phrase used to cover a variety of legal rights which can either arise automatically or be registered in respect of creative works, whether that is a brand’s identity, trademark, know-how, confidential information or artistic/dramatic works.
It is important that intellectual property assets are protected from potential competitors and that intellectual property right owners can control how to exploit them. To do this however, it is helpful to have an understanding of what the different types of intellectual property rights are. That will then help in terms of registering, protecting and exploiting your IP.
What is the difference between registered designs and unregistered designs?
Unregistered designs can only prevent other people from copying your design. Unregistered designs can come into effect automatically and are valid either for 15 years from the creation of the relevant design document or ten years from when products made using the design were first marketed, whichever is the lesser. Unregistered design rights are available both in the UK and in the EU.
Registered design rights offer better protection because this means the owner of the registered design right has a legal monopoly in the design for 25 years subject to renewal fees being paid every 5 years. To register a design right, an application has to be made to the appropriate statutory authority. In the UK, the relevant legal body is the Intellectual Property Office (IPO). It is also possible to apply for an EU registered design mark to the European Union Intellectual Property Office (EUIPO). In order for a design to be capable of registration, it must meet certain criteria i.e. it must be novel, of individual character and not excluded by statute.
There are other important distinctions between registered and unregistered designs which are as follows:
- UK unregistered designs do not cover 2D features such as surface decoration but only 3D features such as the shape and configuration of the design. However, EU unregistered designs and UK and EU registered designs protect both 2D and 3D features.
- UK unregistered design rights will protect any functional features whereas EU unregistered design rights and UK and EU registered design rights do not protect any functional features.
EU registered design rights give much broader protection (please see above for some important distinctions) but only last three years. UK registered design rights give ten years’ worth of protection from when the product was first marketed.
Given the legal complexities between registered designs and unregistered designs, it is always our advice that design owners seek legal advice from a specialist intellectual property solicitor and/or a patent and trade mark attorney.
What is the difference between copyright, unregistered design rights and registered design rights?
Copyright protects original literary, dramatic, musical and artistic works, including films, music and computer programs. It protects against the copying of another’s work and the physical expression or representation of an idea but it does not protect against independent development of the same idea. The primary purpose of copyright law is to reward authors for the creation of original works, that is, works where the author has expended independent effort to create the work.
Copyright ownership allows the owner to prevent the unauthorised use of the work, such as making copies or uploading the work to the internet. It is important to appreciate that whilst copyright law is intended to prevent copying it does not provide a monopoly; it does not matter if a similar or identical work already exists if it has not been copied.
Copyright automatically arises on the creation of the work and lasts for 70 years after the death of the author in relation to dramatic, artistic, literary and musical works. The creator of the work is usually the first owner of the copyright in it.
It is a common misconception that copyright can be registered. This is not the case. As mentioned above, copyright automatically arises on the creation of work which has been independently crafted.
In contrast to copyright, design rights protect the appearance, shape, configuration and designs of 2D and 3D objects and products and can cover designs of colour, shape, texture and materials. Whilst copyright automatically arises on the creation of work, design rights can be registered or unregistered and thus provide different levels of protection as mentioned above.
Another difference between copyright, unregistered design rights and registered design rights is the length of protection. As mentioned above, copyright in a work normally lasts for 70 years after the death of the author in relation to dramatic, artistic, literary and artistic works. Unregistered design rights last for the lesser of:
- 15 years from the end of the calendar year when the design was first recorded in a design document or from when an article was first made to the design; or
- 10 years from the end of the calendar year when articles made to the design were first made available for sale or hire. In practice, it is this 10 year period which is the most likely relevant time frame.
Registered design rights last up to 25 years subject to renewal fees being paid every 5 years.
What is the difference between patents and design rights?
Patents provide inventors with a legally protectable monopoly over their inventions and protect new and innovative technical features of products and processes. They normally last for a limited period of 20 years depending on the country.
To qualify for patent protection, an invention must be:
- New;
- Involve an innovative step;
- Be capable of industrial application; and
- Not specifically excluded from protection.
To obtain a patent, an application for a patent needs to be filed; this will normally be with the patent office of the country where the inventor works. In the UK, an application would be made to the IPO and in the EU an application would be made to the European Patent Office (EPO).
Patents can provide a high level of protection and are highly important in some industries; this is clearly seen in the case of pharmaceutical companies, who spend millions of pounds and extensive time on research and development.
The process for registering a patent is not easy and can be expensive. It also exposes a product to competitors through public disclosure of the technology behind it without the competitor breaching the patent. It is, therefore, recommended that you seek advice from a specialist lawyer and/or patent attorney to guide you through the registration process. We have excellent relationships with a number of patent attorneys who we can collaborate with in respect of making a patent application and, where appropriate, work with if a dispute arises in respect of a registered patent.
In contrast, design rights protect the appearance, shape, configuration and designs of 3D objects and products and can cover designs of colour, shape, texture and materials. Unlike patents which need to be registered in order to provide protection, design rights can be registered or unregistered and thus provide different levels of protection. Design owners can apply for a UK registered design mark which will provide protection in the UK or for a community registered design mark which will provide protection in the EU.
Similar to patents, a registered design must meet certain criteria and must be:
- Novel;
- Of individual character; and
- Not excluded by statute.
Protection lasts up to 25 years and the rights are renewed every five years. Registering a design is relatively low-cost and is appropriate for industries such as fashion where design is fundamental in recognising and selling the product.
If a design is registered, subject to meeting the criteria, it will have a right against copying. Protection is given at both the UK and EU level. The EU right is much broader but only lasts for three years. The UK right gives ten years’ worth of protection from when the product was first marketed.
If you have a design that you wish to protect it is vital for you to seek early legal advice to discuss the options available to you. Our intellectual property team, in collaboration with specialist patent and trade mark attorneys, can advise you on the best possible options in terms of registered and unregistered designs and also stand by your side if a dispute relating to designs should arise.
Our specialist intellectual property team routinely advises on a broad range of contentious and non-contentious intellectual property matters relating to trademarks, copyright, patents, confidential information, data protection, design rights and reputation management. Our clients include individuals, owner-managed businesses, SMEs and PLCs from sectors including the arts, media, textile and clothing sectors in the UK and internationally. The team is highly ranked in the legal directory Legal 500 and members of the team are described as being excellent in dealing with clients and managing cases as well as being phenomenally hard workers who produce first class written work. If you need advice on any type of intellectual property matter, please do not hesitate to contact a member of the team today.