A guide to intellectual property law

All businesses have some form of intellectual property, but few fully understand what that means and how to protect it. In this detailed guide, we help explain.

What is intellectual property law?

Intellectual property (IP) law provides legal protection for creative and innovative ideas. It includes things like inventions, art, designs, logos, brand names, and trade secrets.

IP law gives creators control over their work and allows them to commercialise it.

Types of intellectual property

As we’ve seen above, intellectual property law is very broad in scope. It can be broken down into five distinct types.

Copyright

Copyright safeguards original creative works like books, films, paintings, photographs, music, and software.

It covers the specific way an idea is expressed, but not the underlying idea itself. For instance, while you can copyright a cookbook, the individual recipes contained within it aren’t protected in the same way.

Design rights

Design rights protect the way a product looks — its shape, patterns, colours, or overall appearance. Design rights can be registered or remain unregistered — we’ll go into that in more detail below.

Patents

Patents are designed to protect creative and innovative ideas — whether they’re products, processes, or designs. For an invention to qualify for a patent, it needs to be original, non-obvious, and have a clear, practical use.

Trademarks

Trademarks are unique signs or symbols that help to distinguish the goods or services of a business from those of its competitors. This can be things like a brand name, a logo, a slogan, or specific product packaging.

Trademark rights can be earned through usage (unregistered trademarks) but registering a trademark gives stronger legal protection.

Trade secrets

Trade secrets are confidential pieces of information that give businesses a distinct competitive advantage. Examples might include customer lists, manufacturing techniques, secret formulas or business strategies.

Unlike some other types of IP, trade secrets aren’t formally registered. Instead, they’re protected through practical measures like non-disclosure agreements.

Intellectual property examples

So, what does intellectual property look like in real world scenarios? Let’s explore some examples that highlight when each type of IP comes into play:

• Copyright: The Harry Potter series is a great example of copyright in action. The novels, and any adaptations, such as films and merchandise, are protected under copyright law.
• Design: Imagine you own a furniture company and have developed a unique office chair to improve posture and reduce workplace injuries. By registering the design, you protect it from being copied by others.
• Patent: Picture this — you’ve designed a groundbreaking battery technology that allows electric cars to travel twice the distance on a single charge. You could patent the underlying chemical process, thus giving you exclusive rights to manufacture and sell the batteries.
• Trademark: Think about Nike’s famous swoosh logo. This instantly recognisable symbol is protected by a trademark, which ensures that no one else can use the design.
• Trade secret: The formula for Coca-Cola is one of the most well-guarded trade secrets ever. Only a handful of people know the recipe, and this secrecy is what allows the company to keep its competitive edge.

Differences between registered and unregistered intellectual property rights

As we’ve explored above, some forms of intellectual property need to be registered while others do not (although, for some types of IP, it is still wise to do so).

Registered intellectual property rights

Registered intellectual property rights are obtained through a formal application and approval process with the Intellectual Property Office (IPO). During the process, your application is reviewed to ensure it meets the criteria for registration and a search is conducted to check for any similar existing rights.

When you register your IP, you gain stronger legal protection, clearer proof of ownership and a stronger foundation for enforcement against any infringements.

Unregistered intellectual property rights

By contrast, unregistered intellectual property rights come into effect as soon as something is created or used — no formal registration is needed. However, unregistered IP rights usually offer less protection, have a more limited scope, and often cover a shorter time frame. Enforcing unregistered rights can also be more challenging.

Duration of IP protection

The duration of IP protection varies depending on the type:

• Copyright: Generally protects the work for the creator’s lifetime, plus 70 years.
• Designs: Protection varies, but registered designs often have a maximum term of 25 years.
• Patents: Usually last 20 years from the filing date.
• Trademarks: Can last indefinitely provided they’re renewed every 10 years and the mark stays in active use.
• Trade Secrets: Remain protected as long as the information remains confidential and continues to provide a competitive edge.

Registering intellectual property

The process for registering intellectual property depends on the type of IP you’re looking to protect.

As we have detailed above, there is no formal registration process for copyright and design rights — they come into effect automatically. Below, we have outlined the steps involved in each registration of trademarks, designs and patents.

How to register a trademark

Here’s an overview of the process for registering a trademark. The process usually takes four to six months.

1. Conduct clearance searches

Before applying, it’s a good idea to search the IPO database for any existing trademarks that might be similar to yours. This helps you to avoid future conflicts.

2. Specify goods and services

In your trademark application, you’ll need to specify the goods and services (divided into categories called ‘classes’) that your trademark will cover.

3. File your application

Submit your application to the IPO, including a representation of your trademark and the list of goods and services it covers.

4. IPO review

The IPO will review your application to ensure that it meets the registration criteria and check for any similar existing trademarks.

5. Publication for opposition

You application will be published, giving others the opportunity to object if they believe that there is a conflict with their existing trademark.

6. Registration

If no objections are raised, your trademark will be registered, and you’ll receive a certificate to confirm it.

How to register a design

The process for registering a design is quite similar to registering a trademark. Here’s a step-by-step overview to guide you:

1. Conduct clearance searches

Just as with trademark registration, it’s a good idea to start by searching for similar registered designs before you apply. This not only helps you gauge the chances of your application being successful, but also ensures that you’re not accidentally infringing on someone else’s IP.

2. File your application

Next, you’ll submit your application to the IPO. Be sure to include some drawings or photographs of the design that highlight what makes it unique.

3. IPO review

After submission, the IPO will review your application to make sure the design meets the requirements for registration.

4. Registration and publication

Once your design is approved, it will be registered and published in the Designs Register.

How to register a patent

Now, let’s walk through the key steps involved in registering a patent. Be sure to pay particular attention to step one below.

1. Keep your invention secret

Before you file, it’s really important to keep your invention under wraps. If you publicly disclose any details too soon, it could jeopardise your chances of securing patent protection.

2. Submit your patent application

Once you’re ready, file your patent application with the IPO. Make sure to include a detailed description of your invention that clearly explains what it is, how it works and its potential applications.

3. IPO review

Your application will then be thoroughly reviewed by the IPO to assess whether it is new, inventive and can be practically applied.

4. Registration

If the IPO approves your application, your patent will be granted. Your invention will then be published to the Patents Register.

Intellectual property audits

An intellectual property audit is a detailed review of a company’s intellectual property rights, aimed at assessing their value, protection and potential vulnerabilities. All businesses should regularly audit their IP to make sure that it is well-protected and delivering maximum value.

IP audits become particularly important during key moments like mergers and acquisitions, business expansions, restructuring, or when you’re licensing, transferring or selling IP rights.

Conducting an IP audit

Here are some of the key points to cover when conducting an IP audit. It can be really helpful to have an experienced intellectual property lawyer on hand to guide you through the process. Contact us if you need help.

1. Identify your IP assets

Start by listing all the intellectual property that your company owns, both registered and unregistered. Make sure you catalogue everything — from officially registered IP to assets that are not yet licensed or registered.

2. Assess levels of protection

Review the current legal protections for each asset and decide if additional protection is needed. You might face some strategic decisions here. For example, think about whether your innovation would be better protected by applying for a patent, (which involves filing it publicly), or keeping it as a trade secret.

3. Identify opportunities to maximise value

Look for any opportunities to boost the return of your IP. This could involve selling some rights or collaborating with other businesses to create new revenue streams.

4. Review commercial agreements

Carefully go through all the commercial agreements tied to your IP, such as licences, assignments and service contracts. Check the expiration dates of your agreements and that the terms still align with your business goals.

5. Implement findings

Once you have completed the previous steps, the final step is to implement the recommendations that you have come up with. It’s also a good idea at this point to schedule your next IP audit.

Remedies for IP infringement

We’ve talked about how to register your intellectual property, but what can you do if someone infringes on your protected IP? Fortunately, there are several remedies available, and we’ll explore them below.

Cease and desist letters

A practical first step when dealing with intellectual property infringement is to send a formal cease and desist letter to the infringing party. The letter essentially asks them to immediately stop using your IP.

Negotiated settlements

Not every IP infringement case needs to end up in court — many are resolved through settlements between the parties. Settlements can offer a quicker, less costly outcome and might involve the infringer stopping their infringement, paying damages or agreeing to licencing terms.

Mediation is also worth considering at this stage. Using an independent mediator can help negotiations run more smoothly and help reduce conflict or animosity between you and the other party. The IPO’s mediation service specialises in resolving IP disputes.

Injunctions

If settlement isn’t possible, you might consider seeking an injunction. An injunction is a court order that prevents someone from continuing specific actions. In cases of IP infringement, this might mean stopping the infringing party from using, selling, or distributing your intellectual property without permission.

Damages

As the IP owner, you may also be entitled to compensation for any losses incurred due to the infringement. This can include lost profits, unpaid licensing fees and potentially other damages, depending on the extent and impact of the infringement.

Criminal penalties

In certain cases, particularly those involving large-scale counterfeiting or piracy, you may wish to pursue criminal charges. This is more common with copyright and trademark infringements. Criminal penalties can include fines and imprisonment.

Do you need help?

Intellectual property laws are complex. If you need help in protecting your IP, contact our experienced intellectual property solicitors.