Technology / IP

Some people think (or hope) that material circulated on the internet is automatically 'in the public domain' and therefore fair game, or that if everyone else is copying things, then it's okay to do the same. Both are widely believed and both are untrue. Similarly, the commissioner of a piece of intellectual property won't always own the intellectual property outright. This is another common misconception and another reason to keep these practical issues at the forefront of your mind when it comes to dealing with (and paying people to create) important intellectual property for your business.

Most intellectual property falls into one of two categories: registered  (mainly, trade marks, patents and registered designs) and unregistered (mainly, copyright, confidential know-how that doesn't fall into any other category, unregistered designs and passing off rights). 

Registered rights are generally much easier to identify and deal with since you can check their existence, what they cover and their (ownership) by reference to a register of intellectual property.  However, some people still think that, once a right is registered, it is safe from attack. In fact, UK and EU registered designs and trade marks can be invalidated even once registered. Some also believe that making a few tweaks to a trade mark or design will allow them to use it with impunity.  In fact, you can't just alter a few letters to escape trade mark infringement, and you can't make five (or seven, or any other number of) changes to avoid infringing a design.  In general, the safest approach is to remember that you shouldn't produce something which (for designs) produces a similar overall impression as a prior design or (for trade marks) might confuse or associate with prior marks, or (for patents) functions in the same way as a patented solution..

Unregistered intellectual property is generally harder to identify and defend, but there is no need to register it by its very definition.  Copyright protection arises automatically from the moment a work is created, and you certainly don't need to put the © symbol on a work to benefit in the UK and the EU(although, in some jurisdictions, there are advantages of doing so in and it is a useful way of giving notice that you consider the work in question to be protected by copyright).  However, there is also no rule of thumb when it comes to copying: you can't avoid copyright by taking only every other word of an article, or only the first few bars of a song.  Moreover, you can't get around the law by acknowledging the original work.  If the new work copies a substantial part (assessed qualitatively) of the original, there will be a problem. Likewise, you cannot simply use someone else's brand attributes or design elements even if there is no obvious indication of registration.

It's clear, then, that some intellectual property myths make you think your intellectual property is protected when it might not be.  Others could leave you facing a nasty shock, when the owner of intellectual property you thought was free to use gets in touch and asks you to cease and desist.  There's no substitute for detailed advice, but remembering a few general rules and principles and abandoning a few myths like these can help when it comes to defending your intellectual property, or avoiding infringement of somebody else's.