Intellectual Property Rights :patents, copyright, designs, trade mark, passing off
Patents
A patent is one of the most important tools within intellectual property law. It protects inventions by granting the inventor exclusive rights over their creation. Unlike copyright or trade marks, which deal with creative expression or branding, patents focus specifically on technology and innovation—on how things work.
What is a Patent?
A patent covers an invention, which can be either:
To qualify, the invention must meet strict criteria:
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Novelty: it must be new and not already disclosed to the public.
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Inventive step: it must not be obvious to a person skilled in the relevant field.
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Industrial application: it must be capable of being made or used in some form of industry.
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Exclusions: it must not fall within the categories of subject matter excluded by law (such as abstract ideas or purely mathematical methods).
When assessing novelty and inventiveness, the invention is compared to what is called the prior art—all information already available to the public at the time of the application.
Rights Granted by a Patent
A patent gives its owner (the patentee) an exclusive right for a limited period, usually 20 years from the filing date. During this time, the patentee can prevent others from:
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making the invention,
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using it,
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offering it for sale,
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selling it, or
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importing it.
Importantly, it is not a defence for someone else to argue that they invented the same thing independently. If the invention is patented, unauthorised use is an infringement.
Patent Registration
In the UK, patents are granted by the United Kingdom Intellectual Property Office (UKIPO) under the Patents Act 1977. The process involves:
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Filing a patent application with a full description of the invention.
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Examination to ensure the criteria are met.
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Publication and, if successful, the granting of the patent.
The system is designed to encourage innovation by rewarding inventors with a time-limited monopoly, while ultimately benefiting society by requiring full disclosure of the invention. After the patent expires, the invention falls into the public domain, where anyone may use it freely.
Why Patents Matter
Patents play a vital role in the modern economy by:
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encouraging technological progress,
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protecting investments in research and development, and
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enabling inventors to commercialise their ideas.
At the same time, patents are controversial because they can create monopolies and limit competition. This tension makes the study of patent law both challenging and significant.
Copyright
Copyright is one of the most familiar areas of intellectual property law. Unlike patents, which protect inventions, copyright protects creative works of the mind. It rewards authors, artists, and creators by giving them control over how their work is used.
What is Copyright?
Copyright protects original works such as:
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literary works (books, articles, computer code),
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musical works,
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artistic works (paintings, drawings, photography),
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films, sound recordings, and broadcasts,
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databases and certain digital content.
The essential requirement is originality. The work must be the author’s own intellectual creation. Copyright does not protect mere ideas or concepts—it protects the expression of those ideas in a tangible form.
Rights Granted by Copyright
Copyright gives the creator a set of exclusive rights, including the right to:
Anyone else wishing to use the work in these ways must have permission (a licence) from the copyright holder. Otherwise, it amounts to infringement.
Duration of Copyright
The duration of protection depends on the type of work, but generally:
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For literary, dramatic, musical, and artistic works: life of the author plus 70 years.
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For sound recordings and films: a different period applies, but still long enough to ensure significant protection.
After this period, the work enters the public domain, where anyone may use it without restriction.
Copyright and Creativity
Unlike patents or trade marks, copyright does not require registration. It arises automatically when a qualifying work is created. This makes it especially important in the digital age, where copying and sharing are effortless.
For example, if a songwriter records a track at home, that recording is automatically protected. No form needs to be filed, and no fee is required—the protection exists by law from the moment of creation.
Why Copyright Matters
Copyright seeks to strike a balance:
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On one hand, it rewards and incentivises creators.
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On the other hand, it ensures that after a period of protection, works become freely available to society.
In this way, copyright fuels cultural and economic development, while also ensuring the eventual free exchange of knowledge and creativity.
Designs
Design law is concerned with how things look. Unlike patents, which protect how something works, or copyright, which protects creative expression, design law protects the appearance of products. This can include the shape, configuration, surface decoration, or other visual features that give a product its distinctive look.
What is Protected
A design right does not protect the underlying function of an item but rather the features that make it visually distinctive. For example, the elegant curves of a chair, the unique shape of a smartphone, or the decorative pattern on fabric may all fall under design protection.
Types of Protection
There are generally two main forms of legal protection available for designs:
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Registered Design
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A registered design must be new and have individual character.
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It gives its owner the exclusive right to prevent others from making, selling, or using products that incorporate that design.
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Registration usually lasts up to 25 years, provided renewal fees are paid at regular intervals.
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Importantly, independent creation is not a defence—if someone produces a design too close to an existing registered one, it may still infringe.
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Unregistered Design Right
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This arises automatically when a qualifying design is created.
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It typically protects the shape or configuration of a product, rather than surface decoration.
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The duration is shorter, often lasting up to 10–15 years depending on the circumstances.
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Unlike registered designs, infringement requires proof of copying, so independent creation is a valid defence.
Example
Imagine a company that creates a new line of modern kitchen appliances. The appliances themselves may perform similar functions to others on the market, but what makes them stand out is their sleek, futuristic appearance. By registering their designs, the company can stop competitors from launching look-alike products that could confuse customers.
Why Design Protection Matters
Designs play a crucial role in consumer choice. Very often, it is the appearance of a product that attracts buyers before they consider its technical features or price. Protecting designs:
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safeguards the investment made in innovation and product development,
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encourages creativity in industries where visual identity matters,
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ensures fair competition by preventing unfair copying.
Trade Marks
Trade marks are a fundamental part of intellectual property law, designed to protect brands and ensure that consumers can identify the origin of goods or services. A trade mark can be a word, logo, symbol, or combination of these elements used in the course of trade.
Trade Marks
Trade marks allow businesses to differentiate their products and services from those of competitors. They help consumers make informed choices, returning to brands that meet their expectations and avoiding those that do not.
Registered Trade Marks
A trade mark can be legally protected through registration. To qualify, a sign must:
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be capable of graphic representation,
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be distinctive, meaning it can distinguish the goods or services of one business from another,
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not fall under absolute grounds for refusal (such as being generic or descriptive),
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not conflict with existing rights (relative grounds for refusal).
Once registered with the Trade Marks Registry (part of the UK Intellectual Property Office), a trade mark can potentially last indefinitely, provided renewal fees are paid every 10 years. Registration gives the owner the exclusive right to prevent others from using the same or confusingly similar marks in commerce, for the same or related goods and services.
Even registered trade marks are not completely immune: if the owner does not actively use or protect the mark, it can be challenged or revoked by third parties.
Passing Off
Not all trade marks are registered. Businesses can also rely on common law protection through the tort of passing off. Passing off is judge-made law that prevents one business from misrepresenting its goods or services as those of another.
Key Elements of Passing Off
To succeed in a passing off action, the claimant generally must show that:
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The business has established goodwill or reputation in a mark, name, or get-up.
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There has been a misrepresentation by another party, suggesting that their goods or services are those of the claimant.
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The misrepresentation has caused, or is likely to cause, damage to the claimant’s business.
Passing off protects unregistered trade marks and other identifiers, including logos, packaging, and even slogans, as long as they are associated with a business and its reputation.
Example
A small coffee shop called “Golden Bean” becomes popular locally. If a competitor opens a café nearby using the name “Golden Bean Café” and similar branding, customers might be misled into thinking the new café is connected to the original. The original owner could bring a passing off action to prevent confusion and protect their goodwill.
Why Trade Mark Protection Matters
Trade marks and passing off are essential tools for:
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Protecting brand identity and reputation,
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Ensuring consumer confidence in products and services,
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Preventing unfair competition and misleading practices.
By combining registered trade mark rights with common law protections like passing off, businesses can safeguard their brands effectively, whether or not they have completed formal registration.
Which of the following best describes a patent?
A legal right protecting an invention, either a product or a process, giving exclusive use for a limited time.
A right that protects the artistic style or brand logo of a product indefinitely.
Which type of work is automatically protected by copyright upon creation?
A literary, musical, artistic, or audiovisual work created by the author.
Any idea or concept in someone’s mind, even if not expressed.
What aspect does design protection focus on?
The visual appearance, shape, configuration, or surface decoration of a product.
The functional technology behind a product or process.
What is the main purpose of a trade mark?
To distinguish goods or services of one business from another and protect brand identity.
To protect the underlying invention or technical process.
Which elements must a claimant prove to succeed in a passing off action?
Goodwill in a mark, misrepresentation by another party, and damage caused or likely caused.
Registration of the trade mark, novelty, and industrial application.
How long does patent protection typically last?
Usually 20 years from the filing date.
Life of the inventor plus 70 years.
