1 a- Intellectual property indicates a range of different rights some are registered rights some are unregistered. Registered rights: these are granted on application to an official body such as the UK Intellectual Property Office. Registered rights are monopoly rights, in other words once registered, the owner can stop others from using the right without permission. They include patents, trademarks and registered industrial designs. Unregistered rights: these arise automatically, give protection against copying or using the right, and include copyright, unregistered design rights, rights in unregistered trademarks and confidential information.
Starting from a marketing strategy campaign, this should establish a clear link between your products or services and your company, as the producer or provider of such products or services and a (strong) trademark is the most important tool for traders to differentiate their goods from those of other traders.
IP combined with other marketing tools (such as advertisements and other sales promotion activities) are crucial for:
• Differentiating your products and services and making them easily recognisable;
• Promoting your products or services and creating a loyal clientele;
• Diversifying your market strategy to various target groups.
You may be interested in expanding an existing business (extending your territory or the nature of business) or improving the quality of the goods or services of your company and thereby its market position. In many situations, licensing of intellectual property rights is an effective tool for achieving these business goals.
A licensing agreement is an arrangement between an intellectual property owner (licensor) and another who is authorised to use such rights (licensee) in exchange for an agreed payment (fee or royalty). A variety of such licensing agreements are available.
As an intellectual property owner and a licensor, your company can expand its business to the frontiers of your partners’ business and ensure a steady stream of additional income. As a licensee, your company can manufacture, sell, import, export, distribute and market various goods or services which it may be prevented from doing otherwise.
To remain ahead of competitors, business entities must either continuously introduce radically new products and services or make small improvements to the quality of existing products and services. For this reason, innovative and creative ideas are at the heart of most successful businesses.
Ideas by themselves, however, have little value. They need to be developed, turned into innovative products or services and commercialised successfully so as to enable your company to reap the benefits of your innovation and creativity. Intellectual property rights can be crucial for turning innovative ideas and inventions into competitive products that significantly increase profit margins.
In addition, your company may use registered rights such as patents to earn royalty revenue by licensing such patented inventions to other companies that have the capacity to commercialise them. This may provide you with a stream of income from your invention or the inventions of employees of your company, without the need to invest in its commercialisation.
Your company may also use trade marks to earn royalty revenue by licensing its trade marks to other companies that have the capacity to manufacture and sale products suitable to bear your trade marks.
As far as inventions are concerned, when an invention is made, it is important to consider how and whether it should be protected before any details are published or any samples are circulated. Failure to do so can severely limit, or even wholly undermine the scope for protection. The choice of protection often lies between patenting and maintaining the invention as a trade secret under the law of confidential information.
Patents are available for most industrially applicable processes and devices. A patent confers a monopoly right as it prevents others from operating within the scope of the patent claims, even if others developed their own technology wholly independently of the patentee and were wholly unaware of the existence of the patent or of the product or process which the patent protects. In contrast the law of confidential information cannot be used against independently developed technology. The main reason for obtaining a patent is to be able to exploit the technology exclusively, either solely or by licence to third parties.
As far as trademarks are concerned, the registration confers on the proprietor the statutory right to the exclusive use of the mark in connection with the goods or services for which it is registered. The proprietor can authorise or license others to use the mark but, most importantly, registration gives the proprietor the right to sue for trade mark infringement any person who uses an identical or similar mark in connection with identical or similar goods without authorisation. There is no requirement to prove reputation or goodwill. In certain circumstances the proprietor can prevent use of an identical or similar mark on dissimilar goods.
Passing off actions are notoriously time-consuming and expensive. To succeed in such an action, the proprietor must produce evidence of his ownership of goodwill or reputation in the mark, and evidence that the unauthorised use of his mark amounts to a misrepresentation which is causing, or is likely to cause, damage.
Finally, a registered design confers a 25-year monopoly right in the design. Registration gives the exclusive right to make articles incorporating the design, allowing the owner to sue for infringement even where the defendant did not copy the design. If a registration is not obtained, the owner of the design would need to depend on:
- design right, which only lasts for ten years from the end of the year of first exploitation; or
- where applicable, copyright (for example, where an artistic work is involved).
In the case both of design right and copyright, the owner would need to prove that the defendant had copied the design in order to succeed in an infringement action.