Intellectual Property Rights
by Richard Broadbent (1 June 2006)
4. Design Rights
One of the most appealing aspects of the hugely successful Coca-Cola brand is the distinctive shape of the Coca-Cola bottle. The right that prevents others copying this shape is ‘design right’. In England design right can take two forms: registered and unregistered. A registered design can cover a vast array of goods from food packaging to furniture and jewellery to designer cloths, so long as the goods are new and have ‘individual character’. When registered the owner then has a monopoly over the design which can be exploited, exclusively, for 25 years from the date of registration.
Unregistered design rights were created to cover purely functional three dimensional items which are original and not commonplace in that design field. The right arises automatically and lasts for 10 years, however this is a very weak right and where possible people will generally rely on copyright and not design right as a way of protecting their goods. Whilst a brand name will not rely on unregistered design right per se, it is useful to know that this right exists as the reputation of a business may be harmed if competitors are copying goods or products which a brand name promotes.
5. Patents
Patents are the classic form of Intellectual Property protection. Patents cover inventions, no matter how weird and wonderful they are, so long as they are new, involve an inventive step, are capable of industrial application and are, of course, an invention. Whilst hideously expensive and longwinded to obtain, a patent right gives the owner a monopoly over the invention for 20 years. The commercial benefit of this usually outweighs the time and effort of obtaining the right. Again, patents could be a vital tool to protect the goods the brand promotes by preventing others either claiming the credit or producing inferior duplicates. A large part of the reputation of a business depends on the quality of what it sells, and so it may be worth considering this right to ensure that once you have something you’ve worked hard to produce the quality remains high and others don’t rip it off.
6. Other IP Rights
There are a variety of other Intellectual Property rights which may be of use but which are less important when promoting a brand. These include moral rights in an artistic work, database rights to prevent the copying of lists of clients, performers rights and so on.
As well as these other Intellectual Property rights another very important right to the promoters of a brand is that of confidential information. This right can prevent vital trade secrets and know-how being leaked out which may damage the presentation or substance of a brand. A classic example is the top-secret recipe for Coca-Cola or KFC Chicken. Clearly the essence of a brand is the ‘special something’ that separates it from the competition. By making that information top secret you have taken a big step towards protecting the reputation and appeal of your brand.
To be relied upon, confidential information must have some element of originality, be clearly identifiable, be of potential commercial attractiveness, and be sufficiently developed to be capable of actual realisation. It must also be conveyed in such a way that the person it is imparted to knows that it is confidential. In order to enforce the right the information must have been used in an unauthorised manner (i.e. leaked to a competitor). If all of this can be shown you can then sue for damages and order goods made using the confidential information to be delivered up and destroyed. Finally, you don’t need to register this right in order to rely on it and it lasts indefinitely.
This whistle stop tour of the main Intellectual Property rights will hopefully give you a flavour of the types of rights that can be used to protect a brand. As a practical point a business that is serious about its brand name should look into creating a dedicated branding department, either on its own or as part of the marketing department, which can focus on legally protecting the brand and research what infringements are taking place in the market. It may also be prudent to equip this department with an in house lawyer.
Your brand is essential for conveying the message of your business and it is your responsibility not to leave it vulnerable to attack.
