Iain Stansfield answers some frequently asked questions about intellectual property
Under UK law no positive act needs to be taken to obtain copyright protection over a protectable work. Copyright subsists automatically on creation of the work.
Registration of designs in the UK has recently changed due to a European Directive. You can now register for protection many different aspects of your design: these include colour, texture, packaging, get-up, and graphic symbols. It is also now possible to obtain registration of parts of a product.
There is now also a 12-month grace period so that you can publish and market test your design before you incur the cost of registering it. Once you have registered your design it will be protected for 25 years (although you must renew the registration every 5 years) and this right can be exercised to prevent people copying it, selling, stocking or exporting the products using your design without your permission.
The typical cost of drafting and submitting a patent application is £750 to £1,500. It could be more in certain circumstances. The cost will depend on factors such as how complicated the relevant invention is and what competing technology exists.
If there is much competing technology, the patent must be carefully drafted to avoid infringing or overlapping with that. Additional cost may arise if the application meets with resistance from the Examiner or third parties.
The prices quoted above reflect the need to draft a detailed, wide and correct application to give the greatest possible monopoly protection. The wider the scope of the claim, the better protected and more profitable the patent. It may well be worth spending more on an application bearing in mind the potential return from the 20-year monopoly that you will be granted. Spending extra on a skilled patent draftsman should reduce the chances of your patent infringing another, and subsequently being declared invalid.
Ownership of intellectual property is determined by the relationship between the creator and the commissioner. If the creator is an employee of the commissioner and produces the work in the course of his/her employment, then it will vest in the commissioner. If the creator is a freelance (a company or individual), then ownership will be determined by two factors: (i) what type of right is involved; and (ii) what any contract between the parties says.
In relation to (i), rights in a product which would attract design right (basically a three-dimensional object) will be vested in the commissioner. Confusingly, however, the new EU-wide rights protecting designs (see 'Overview' and 'Future trends') do not vest in the commissioner. Any other intellectual property which may be created (such as copyright and patents and EU-wide rights) will in the first instance be vested in the creator, even if the work was commissioned by a third party for good consideration. This is subject to point (ii), in that parties can agree contractually that ownership will be vested in either party notwithstanding the position under the general law.
The short answer is to instruct a firm of solicitors. Various pieces of legislation governing intellectual property create protection against unauthorised or inappropriate threats of legal action and an aggrieved party may unwittingly fall foul of this if he proceeds without proper legal advice. Gather together evidence of the allegedly infringing use of the design, together with evidence of your own creation, development and exploitation of it (design note books, publicity material, order documentation etc) and seek legal advice.
This is potentially a complex question and the answer will depend on both the nature of the designs and the circumstances in which they are shown. Certain types of designs will enjoy intellectual property protection simply by their very nature, e.g. a two-dimensional graphic design or work of art will have copyright protection through the simple fact of it having been created by its designer. (See the 'Assert your Rights' section of 'Top tips' for some advice on asserting copyright.)
Designs which relate to or implement some form of inventive process, however, are potentially vulnerable if they are shown to third parties. Disclosure of an 'invention' can prevent it from being the subject of a patent. For designs of that type it is strongly advisable to use a confidentiality agreement, as more fully explained in the relevant section of 'Top tips'.
How this type of suggestion can be applied in individual circumstances will be a matter of what is common practice and what a designer can get away with. It would be normal, and should be insisted on, that in the context of an exhibition the copyright or design rights of the artist or designer should be asserted, probably in the catalogue or elsewhere where it will be visible to visitors. In more one-on-one situations (eg submitting a portfolio to a prospective employer or in a pitch scenario) one may not be able to obtain a non-disclosure agreement. If that is the case consider instead marking the work with a notice asserting the designer's rights and, in the case of inventions, a statement to the effect that they are the confidential information of the designer and not to be used or disclosed without his/her consent. In such situations, make a clear record of what you disclosed, to whom and when.