Are you Protecting Your Work from Copycats?

November 3, 2012 in Working From Home

Are You Protecting the Work the You Are Creating?

There is  nothing more frustrating than spending your time and emotion to create something new, whether it be written, photographic or a product design, and then find that someone else has copied your idea and is making money from it.

Here is a simple guide to ensure that your work…stays yours.

Copyright

If you create original written, musical, illustrative or photographic work or design computer software then your work automatically has a copyright without the need to register it. For protection, before you make your work public, you should mark it with:

- the copyright symbol (©)

- the copyright holder’s name

- the year the work was created

Copyright in the UK lasts for the rest of the creator’s life plus 70 years.  UK copyright is automatically valid in countries who have signed the Berne Convention although the time period varies.

Design Right

Design right automatically protects the physical shape of something original that you have designed as long as it is unique: the law states it can’t be ‘commonplace, everyday or ordinary’.  Design right does not cover any two-dimensional elements of a design, e.g. a pattern on a product’s surface.  It protects your design in the UK until the earlier of:

  • 15 years after the design was first created
  • 10 years after the design was first marketed and sold

A unique design you create in the UK will automatically become an ‘unregistered community design’. Unregistered community designs are protected across the EU for up to 3 years after you make the design public.

If someone uses your design without permission, defending design right and unregistered community design, however, can be difficult. You need to prove:

  • your work is original
  • you created it first
  • any copying was deliberate

If you can prove all these things, you can try to stop or reach an agreement with whoever’s using your design without permission.

You can get stronger protection for your design by registering it.

Patents

You can protect something you’ve invented by patenting it. A patent registers your invention and stops anyone making, using or selling it without your permission.  In order to do so your invention has to be:

  • new
  • genuinely inventive (not just an obvious modification to something that already exists)
  • something that can be physically made or used

Patent registrations can be complicated,  and can take more than 4 years to grant, so I would recommend using a patent lawyer.  This may be expensive but how much is your design worth to you.  If you patent is granted, you can licence it to other people, which is another potential source of income, or defend it against infringements.  A patent can last for 20 years from the date you apply for it. After you’ve held a patent for 4 years, you must renew it every year if you want to keep it.  In addition a patent only protects your invention in the country where the patent is registered.

In the late 1970s, James Dyson had the idea of using cyclonic separation to create a vacuum cleaner that would not lose suction as it picked up dirt.  The Dyson Dual Cyclone became the fastest-selling vacuum cleaner ever made in the UK.  Following his success, other major manufacturers began to market their own cyclonic vacuum cleaners. Dyson sued Hoover UK for patent infringement and won around $5 million in damages. (Source – Wikipedia)

Trademarks

A trademark is a something that makes your brand recognisable, like a logo, and registering it prevents other people from using it without your permission.  To register a trademark, it must be clearly different from any others already registered for the same type of products or services.

A trademark registration lasts 10 years and is only valid in the country of registration. You can renew it every 10 years.

Company names need to be registered at Companies House and domain names with a domain name register before they can be registered as Trademarks.

Registering a trademark in the UK

These are the basic steps to registering your Trademark in the UK:

  1. Check that your brand qualifies as a trademark – you can’t change it after it’s registered.
  2. Find out if an identical or similar trademark already exists – it’s your responsibility to do a thorough search.
  3. Register your trademark.
  4. The Intellectual Property Office (IPO) will check your application.
  5. Your application will be made public to give other people the chance to oppose it.
  6. The IPO grants or refuses your trademark application.

A trademark attorney can help with searches and registrations.

After your trademark is granted it will be published in the IPO database and you’ll get a certificate.

However, the IPO doesn’t police trademark infringement. If someone is using your trademark withoutr you permission, you’ll need to get them to stop.

There are different rules for EU and international trademarks

Registered Designs

Registering your design can give you more protection than design right as it:

  • protects all aspects of your design (for example, both your product’s distinctive shape and its decoration)
  • gives you exclusive rights to use it for up to 25 years

You can register the physical shape, configuration or decoration of a product you’ve designed.

To register your design, it must:

  • be new
  • not be offensive
  • not make use of protected emblems or national flags (for example, the Olympic rings or the Union Flag)
  • not be an invention or how a product works – you need a patent for this

These are the steps to register a design in the UK:

  1. Check the Intellectual Property Office (IPO) database of UK-registered designs to see if your design is unique – or you can ask the IPO to do it for you for £25.
  2. If the design is unique, you can apply to the IPO to register your design.
  3. The IPO will examine your application within a month and if there are no objections, your design will be registered within 3 months.

Applying to register a design costs £60 for the first design and £40 for any other design in the same application.

To register a design across the EU, you apply to the Office for Harmonisation of the Internal Market. A design registered across the EU is called a registered community design. The application cost is €350.

You can also apply for a registered community design through the IPO – you’ll have to pay an additional handling fee of £15.  You can register designs outside the EU.  If the country you want to register the design in has signed the Hague Agreement you can either:

  • apply for registration in that country only
  • make one application for all countries who have signed the agreement

You must apply through the World Intellectual Property Organisation.

If the country hasn’t signed the Hague Agreement, apply to the government department responsible for intellectual property in that country.

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Vicky Tait

Email: vtaitathome@btinternet.com

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