Module 9 - Intellectual Property And The Law Flashcards
Is intellectual property tangible or intangible?
Intangible
How does IP develop?
Human ingenuity and creativity
Who is the body responsible for registered IP rights?
Intellectual Property Office (‘IPO’)
The IPO categorised IP into four broad categories?
Copyright - art
Designs - shape / appearance / pattern
Trademarks - product names / logos / jingles
Patents - inventions
How are trade secrets protected? Eg a recipe
Why?
Keeping them a secret from competitors
Not protected by IPO
Types of protection depends on what?
The nature of the IP and how much protection you want
Is some IP automatic?
Yes
Do you have to apply to get protection from copyright? Eg music
No - it is automatically protected
Is an idea itself under copyright?
No, there some has to be some output to it
Is there a register of copyright material?
No
When are new works automatically protected by law with copyright?
From the date they’re created
What is copyright?
A right that allows the holder to prevent copying
Usual length of protection for literary, dramatic, musical and artistic work?
70 years after authors death
Usual lengths of protection for sound and music recording (copyright)
70 years from published
Usual lengths of protection for films (copyright)
70 years after the death of the director, screenplay author and composer
Usual length of copyright for films for broadcasts (copyright)
50 years from when it’s first broadcast
Usual length of protection (copyright) for layout of published editions of written dramatic or musical work
25 years
What is an “open source license”
Where the copyright owner wants to maintain ownership but not want to necessarily benefit from it commercially
What does an unregistered design right apply to?
3-dimensional shapes - the shape and configuration of these objects
Is there a database of unregistered design rights?
No
Does unregistered design right include colour, material, design, texture etc?
No
In order to protect colour, material, design, texture, what would they need to do?
Register the design
How long does an unregistered design last?
15 years after it was first created
OR
10 years after the design was first sold
How long does a trademark last?
Up to 10 years
Can be renewed 6 months before or after the expiry date
Is there a log of trademarks
Who maintains it?
Yes
IPO maintains a database of registered trademarks - members of the public can search and see if a particular trademark has been registered and find out who owns it
Does a trademark have to be distinctive?
Yes
Are there strict rules about what can and cannot be registered as a trademark?
Yes
Registered designs apply to what?
2-dimensional shapes and 3-dimensional shapes
It also extends to appearance in relation to the lines, contours, colours, and texture of the design
Registering a design protects it for how long?
25 years, although the application needs to be renewed every five years
What are patents used for?
To protect inventions and innovations such as new products, drugs, and production methods
Do patents allow you to stop anyone else using your invention without permission?
Yes
In order to be granted a patent..
The invention must be new or involve an inventive new use of a known product
Is the patent application process complex and expensive?
Yes
What is the % of applicants that are awarded a patent without professional help?
1 in 20
5%
How long does the patent application process usually take?
Around 5 years
How expensive is the patent application process?
Can cost around £4,000 but can often be more
If international rights are brought in, it can cost over £50,000
Is it crucial that there has not been any public disclosure of the invention before a patent application has been made? (Think of dragons den)
Yes
What needs to be signed if having discussions about the invention with people who are not patent attorney?
A non-disclosure agreement (NDA)
How long do patents last?
20 years from the initial filing date with annual renewal fees being required
Is enforcing patent rights complex and expensive?
Yes
Advantages of keeping IP in the business
Business retains exclusive rights to receive the income from the IP
Potential for long-term and ongoing income which excludes from the market to an extent
Disadvantages of keeping the IP in the business?
Business is responsible for maintaining the value of the IP
The business might not be best placed to use the IP - no point having a brilliant oil idea if not access to oil
Company could lose competitive advantage if similar products are launched
Can intellectual property be sold?
Yes
Is valuing IP hard?
Yes
Advantages of selling IP
No on-going commitment to maintaining or protecting the IP once it has been sold
There is an instant cash-injection into the business
Disadvantages of selling IP?
The business no longer has a claim on the IP rights and loses any long term cash inflows which may be higher than the initial cash injection on the sale
Hard to establish and receive a fair price
How does licensing with IP work?
You maintain the IP rights to any IP that a business owns and allow others to use it for a fee
Advantages of licensing IP?
Could be steady, ongoing cash flows available from providing licenses
It might be possible to access market through licensing that the company cannot feasibly access by using IP themselves
Disadvantages of licensing IP?
Business still responsible for protecting the IP
Risk there’s less income than just selling outright
Lose a bit of control over how it is used
Potential reputational risk
What is franchising?
A specific form of licensing where a business grants license to someone which allows the franchisee to use the franchisers brand, technology, systems, processes to run an entire business
Advantages of franchising
Low cost expansion method
New markers and locations can be accessed rapidly
Disadvantages of franchising
Need to vet franchisees
Franchiser will have to provide ongoing support and take appropriate measures to protect the brand from damage
When an entrepreneur is self employed and running a sole trader business, any IP created is owned by who?
Them
There is no legal distinction between the individual and the business
When an employee creates IP in a business, who owns the IP?
The employer (the company owns it)
With contractors, if contractors create IP who does it belong to? (Whilst working on a freelance basis)
It depends
Eg terms and conditions of any engagement agreed
If an entrepreneur turns their business into a limited company, what can the relationship be liked between the owner and the limited company itself?
Pretty relaxed and informal
If IP is create after incorporation, it is possible that the IP will automatically belong to who?
The limited company
Particularly if the owner of the business is also an employee
If IP exists before incorporation, then the IP may be owned by?
The individual who can then choose to sell or license it to the limited company
Can you use other people’s IP?
If there is a legal document showing an agreement, yes
What is it called when you use someone else’s intellectual property without permission?
Infringement
Can infringement happen on a much smaller scale?
Such as?
Yes
Eg using someone’s picture sourced from the internet without permission
What is one of the first steps for dealing with potential IP infringements
Simply contact the other party and ask them to stop using the IP
Eg a cease and desist letter
What is Agree to License or Credit
Where the IP owner agrees to license the IP to the party who is currently using the IP without permission
Can companies sometimes agree to coexist? (Use the same IP at the same time?)
Yes
Dennis the menace example
When would you use a mediator?
If, after discussions with the alleged infringer of IP rights, it has not been possible to come to a conclusion
Who provides mediation services?
IPO
But any independent mediator can be appointed as well
Is using a mediator usually cheaper than taking legal action through courts
Yes
But the exact cost will depend on the nature and complexity of the circumstances
Is taking legal action usually a last resort?
Yes
Is it possible to take legal action through the courts or through the IPO?
Both
More commonly the courts
But in certain circumstances through the IPO
What is a risk of taking legal action?
Expensive
Time consuming
Might lose (Trunkee suitcases example)
