Victoria Evans Protecting Your Ideas 04 03 10 Ppt
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This document summarizes different forms of intellectual property (IP) protection for creative works, including copyright, designs, trademarks, patents, and confidential information. It discusses how IP rights come into existence, who owns them, what protections they provide, and how to avoid infringement. Key takeaways are that copyright and designs can arise automatically based on creation or disclosure, while other IP requires registration; it's important to document creations and ownership clearly to enforce IP rights if needed. The document also provides tips on using contracts and non-disclosure agreements to protect confidential information.
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Victoria Evans Protecting Your Ideas 04 03 10 Ppt
- 1. Protecting your ideas 08 March 2010 Victoria Evans, Associate, Bird & Bird LLP
- 28. Protecting your ideas Victoria Evans, Associate, Bird & Bird LLP www.twobirds.com
Notes de l'éditeur
- This is a 30 minute presentation, so I will cover these topics at a high level and will take questions at the end.
- Sometimes also called "Industrial property", Intellectual property is an area of law that covers various different rights. Intellectual property protects applications of ideas and information that are of commercial value. Intangible- which means they are assets which cannot be seen, touched or physically measured In exchange for the intellectual property right the owner must fulfil certain criteria to gain the right. As we will see the greater the protection granted under the particular intellectual property right the more difficult it is to obtain that right.
- To give you an idea of how these rights might appear in the creative process: Every item, whether an item of clothing, a pair of shoes, a set design, a hat or an item of jewellery, starts out as an idea. The idea itself is not protectable in its own right − certain basic concepts must remain available for anyone to use. However, once an original idea is "put down on paper" or is somehow otherwise made into something tangible, copyright may automatically arise to protect the way in which that original idea has been expressed. Once the idea has been generated, and the idea put on paper, prototypes may be created. Such prototypes, as well as sketches and patterns may be protectable as designs (unregistered or registered). A item will be more memorable and easily distinguishable if it has a name or a distinctive logo. items become identifiable through a number of different names: the designer's name; the name of the house; the name of a group of products to which the item may belong; or a name given to the item itself. With sufficient use, such names may enjoy unregistered trade mark protection if consumers identify the name with the origin of the item . It may also be possible to obtain registered trade mark protection for such names . Additionally, distinctive parts of the item may be registrable as trade marks. Finally, instead of using a name for the purpose of identification, a logo, a combination of name and logo or even a slogan may be used.
- One characteristic shared by all types of intellectual property is that the rights granted are essentially negative : they are rights to stop others doing certain things which can be broadly summarised as "copying" "Copying" in this context is used in its broadest sense to include copying a design which may amount to copyright or design infringement; or copying a trade mark, a brand name, or the look and feel (the get-up) of a particular business or product, which may constitute trade mark infringement or passing off. Penalties depend on the exact nature of the infringement, but usually injunction and damages. Defences in some instances of innocent infringement, but this does not prevent the injunction. UK law currently provides for criminal sanctions only for trade mark counterfeiting and copyright piracy
- I am now going to go on to look at the different rights in turn in a little more detail.
- Artistic works are not just paintings hanging in a gallery- this could include graphic works, patterns, design drawings, paintings, photographs, sculptures Original- skill, labour and judgment required – very low threshold) It is not necessary to post the document to yourself / use a copyright "registration" service author (i.e. person who created it)
- Usually best to reinforce in employment contract Commissioned work: the commissioner should always seek an express written assignment of ownership of the copyright from the designer - simply paying for a commissioned work does not suffice to transfer ownership of the copyright to the commissioner!
- Substantial part- not a mathematical % judgment, as seen on the Louis Vuitton handbag flower motif.
- There are several types of design right, so I am just going to give you an overview of some of the key features. A registered design can be the whole or part of a product resulting from the features of the lines, contours, colours, shape, texture or materials of the product or its ornamentation. This can include packaging, get-up, and graphic symbols. A 3-dimensional article as well as a 2-dimensional design, such as a surface pattern, can be protected. An unregistered design is a 3-dimensional aspect of shape or configuration of the whole or part of an article. A design may also be protected by copyright for artistic 2-dimensional designs – for example – any surface decoration.
- Therefore the degree show will start the clock ticking for design registration
- There are a number of trade marks visible in this picture: not only the Coca-Cola logo but also the shape of the bottle. The recipe for coca-cola is a trade secret.
- TMs protect companies' brands by serving as an indication of the origin of the goods. This type of protection protects the companies' investment in building quality brands and marketing/advertising of those brands. E.g., generic coke drinks, generic pharmaceuticals. Branded goods often have a first to market effect or "quality" associated with them. There are both unregistered trade marks and registered trade marks. Registered trade marks can be registered in the United Kingdom or as a Community Trade Mark within the EU. Trade marks continue as long as the registration fees are paid. Unregistered trade marks are marks used by traders that over time build up associated goodwill. Such marks can be protected by way of a passing off action which is wider than registered trade mark infringement as it protects all the ways in which a claimant’s product or business may be identified. On the other hand, the benchmark for establishing a cause of action in is normally higher from an evidential point of view.
- The owner of a trade mark can prevent others from using a mark in the course of trade that is identical or similar to the owner's registered trade mark if the infringer's mark is used on identical or similar goods and services as the registered mark. The owner must also show that if the mark is similar that the public is confused into thinking that the allegedly infringing mark is actually the owner's mark. If the mark used is similar or identical to the owner's mark however it is used on dissimilar goods or services where the trade mark has a significant reputation and use of the other mark must take unfair advantage or be detrimental to this reputation. The test for infringement of a trade mark is whether a consumer in a rush would be confused by the trade mark and the allegedly infringing trade mark.
- Assignment- basically the 'sale' of the right leaving the seller with no further interest
- Confidential information is not technically IP under English law - it is protected not by law, but by the fact it is confidential Any information which is disclosed i.e. someone could learn during your final show will lose its confidentiality To bring an action for breach of confidence, there must also be use or disclosure of the information, either threatened or actual.
- (or Non-disclosure Agreements/NDAs)
- Keeping a document trail that records the creation process is important to show the existence and ownership of rights in the original work. A good document trail will show the originality of the work, record the date of first creation and reveal any subsequent amendments. It should also demonstrate how the idea evolved into a tangible product.
- Searches- more difficult, obviously more likely to be influences by intellectual property which is around you, so worth looking again at anything you may have used for inspiration, and thinking about whether there could be any IP in it. You can also do some simple internet searches and it is possible for registered rights to look on the registers at the IPO, but at this point you may want to get some legal advice. When approaching companies in respect of your work, depending what it is- try to put a confidentiality agreement in place (although not always practical). Try not to leave samples or design drawings i.e. types of items which would enable copying. If you enter into a contract, be clear about what rights you have – there maybe industry standards which you might not be able to avoid, but at least you will be operating with clear understanding. Joint ownership of copyright: any work produced by collaboration in which the contribution of each author is not distinct from that of the others Copyright duration runs from the death of last of joint authors to die Joint rights to exploit or enforce
- As I said I have covered only the basics of the types of rights – we have not looked in detail at defences which may be available – if in doubt try to get some more advice.