Frequently Asked Questions (“FAQs”) about Copyright, Designs and Trade Marks

COPYRIGHT

What is copyright? In the UK it is an unregistered right (unlike patents, registered designs or trade marks). There is no official action to take – no application to make, forms to fill in or fees to pay. Copyright comes into effect as soon as something that can be protected is created and “fixed” in some way, e.g. on paper, on film, via sound recording, as an electronic record on the internet, etc.

It is a good idea for you to mark your copyright work with the copyright symbol © followed by your name and the date, to warn others against copying it, but it is not legally necessary in the UK.

The types of works that ‘copyright’ protects are:

  • original literary works, e.g. novels, instruction manuals, computer programs, lyrics for songs, articles in newspapers and some types of databases
  • original dramatic works, including works of dance or mime;
  • original musical works;
  • original artistic works, e.g. paintings, engravings, photographs, sculptures, collages, works of architecture, technical drawings, diagrams, maps, logos;
  • published editions of works, i.e. the typographical arrangement of a publication;
  • sound recordings, which may be recordings on any medium, e.g. tape or compact disc, and may be recordings of other copyright works, e.g. musical or literary;
  • films, including videos; and
  • broadcasts.

I am a card designer/ illustrator, why do I need to know about copyright?

Copyright affects everything that you do.

If you design a card, or create a drawing, then you own the copyright in that artwork. This is your right as the creator of that design unless you assign the copyright in that work to the person who commissioned (or purchased) the card design. This applies even if you have been paid for the card design (or drawing) and you can charge the company that commissioned the image a fee (in the form of a licence agreement) to use this design – now and in the future.

If you use or re interpret someone else’s painting, drawing or imagery, you need to know if that picture is subject to copyright. You need to ask yourself ‘when did the artist of this picture die?’ If it was over 70 years ago, then you could incorporate some or all of the picture into a new work. But please note, a photograph in a book is someone else’s copyright – it usually belongs to the publisher or the photographer.

At BRAND PROTECT, we can help you maximise your earnings from licensing your designs and illustrations and help you to continue to benefit from them for the whole of your lifetime (and, perhaps, those of your children).

I manufacture and sell cards, how does copyright law affect my business?

The image on every card that you sell is protected by copyright. Beware of selling images that you do not own, or do not have the right to sell. If you, for example, sell a card that includes a photograph that you commissioned, the photographer probably owns that image – not you. Ensure that you own, or have purchased the rights, to reproduce that image. The same applies to designs or paintings; the copyright stays with the designer or painter, unless you mutually agree that the rights are assigned to you in writing, the card manufacturer.

At BRAND PROTECT, we specialise in this aspect of the law and can advise you on the most cost effective approach to dealing with copyright issues.

REGISTERED DESIGNS

I am a designer. How can I prevent manufacturers and /or big retail companies copying my graphics or product designs and mass-producing them?

As soon as you produce an original design and put it on paper or make a model from it, you probably own the copyright (assuming that you have done the work in your own time – if you are in employment – and you are a British subject).  You do not have to register your designs and the law of copyright will prevent someone else from illegally copying your designs.

However, you can register the design as either a Community, or a UK, design. The real advantage of registration is that this not only gives you the right to stop someone else copying the design (as with copyright) but also prevents them coming up with the excuse that the design that they are using is not copied from you but was “thought up independently”. The process of applying for a design as a registered design is a little complicated but, at Brand Protect, we have considerable experience of making such applications for our clients.

Once you have registered the design, you can use that design on anything from a porcelain pot to a t-shirt. The other advantage is that the design can be licensed to a retailer, or manufacturer, and so enable you to generate money for yourself.

In our experience, even if a large company knows that you own the copyright in a design, they will take your design and reproduce something akin to that design. Faced with a registered design they are less likely to “rip you off” as they know that it is relatively cheap for you to enforce your design right and they do not have many defenses available to them if they have copied your design. By registering your designs, you indicate that you know your rights and take those rights seriously.

We can help you to register new designs and then license those designs to third parties in ways that make money for you. Remember that design registration lasts up to 25 years.

TRADE MARKS

What is a registered trade mark?

A registered trade mark is any “sign” which can distinguish your goods and services from those of another trader. A sign includes, for example, words, logos, pictures or a combination of these.

How do I get a registered trade mark that is valid in the UK?

You need to make an application to either the UK Trade Marks Registry (if you want a UK trade mark) or the EU trade mark office in Spain (for a EU trade mark – which is also valid in the UK).

Is a trade mark expensive to obtain?
An application for a UK registered trade mark costs as little as £170 (valid for 10 years) and is valid for the whole of the UK.

If you want to protect trade marks in the whole of the EU then this costs from €850 for the application.

At BRAND PROTECT, we can guide your application through the legal complexities of applying for trade marks. Our charges can be fixed in advance and start from £350 (in addition to registration fees). This includes a custom specification of goods and services offered by your company. We assist you to overcome competitors’ objections to your application and provide a first class service at a very low cost.

I have invested time and money in developing a good reputation and well known brand name, why do I need to protect this name?

You may gain the right to prevent others from using a confusingly similar trade mark simply by selling goods and services under that brand. However, simply using a brand image may not give you the right to use that brand in the first place. If someone registers either a UK or Community trade mark, you could be forced to stop using that trade mark.

Why do I need a trade mark?

  • A trade mark says something about you and your reputation. It is like your name. Choose it with care.
  • A registered trade mark gives you extra legal protection to prevent others using your name or a similar brand name
  • If you trade in the UK, then everything that you spend on marketing can be ascribed to the value of the registered brand name for accounting purposes. All costs incurred in protecting a registered trade mark are tax deductible.
  • Think of some of the trade mark that are sold to other businesses. The companies that purchase those trade marks are interested in the value of the brand and are willing to pay huge premiums to own a well-known trade mark. Unless that brand is registered as a trade mark, it has no sale value.

My company has just completed a re-branding process; do I need to protect the new brand image?

Do you own that image? Are you sure? Has the image been assigned in such a way that you own the image absolutely?

Many companies believe that just because they have paid for an image – or even a website – to be created, that they own the rights to that image or website. It comes as quite a shock when those companies find out that they do not own
them.

We can help in providing cost effective transfer of a trade mark and other rights to the appropriate owner.

My business is very small, why should I spend my money on trade mark protection?

The cost – to a small business – of registering their trade mark is often £500 – £1000. This can be a large sum of money to a small business and the costs and benefits must be carefully weighed up. If none of your competitors trade under a similar trade mark to yours and are unlikely to do so in the future, then there is little danger that they will cause confusion to your customers and there is no danger that your business would be damaged by this. If there is little likelihood of current or new competitors behaving in this way then you might be advised not to spend the money on registering your trade mark.