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Trade marks, copyright and design rights

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Contents

Trade marks

A trade mark protects any sign or symbol that allows your customers to tell you apart from your competitors. You can register a name, numerals, logo, slogan, designs, letters, domain name, shape, smell or sound.

A trade mark must be:

  • Distinctive for the goods and services to which you wish to apply the trade mark
  • Not deceptive, contrary to public policy, law or morality or registered in bad faith

If your trade mark meets these requirements, you may want to consider applying for a registered trade mark. For further information on registering a trade mark, please visit Intellectual Property Office.

Your trade mark does not have to be registered, but an unregistered mark can only be protected by relying on the common law of passing off or (in some cases) copyright infringement. A registered trade mark is preferable as it gives you a statutory monopoly to use that mark (e.g. in the UK if a UK mark) for the goods and services under which it is registered. It is much easier to pursue infringers under registered trade mark infringement as opposed to Passing off.

If you have a registered trade mark, you must renew it every 10 years to keep it in force.

Copyright

Copyright protects original artistic, literary, dramatic or musical works. You should only copy or use a copyrighted work with the copyright owner's permission.

You can copyright:

  • Literature, including novels, instruction manuals, computer programs, song lyrics, newspaper articles and some types of databases
  • Drama, including dance or mime
  • Music
  • Art, including paintings, engravings, photographs, sculptures, collages, architecture, technical drawings, diagrams, maps and logos
  • Layouts used to publish a work, e.g. for a book
  • Recordings of a work, including sound and film
  • Broadcasts of a work

Copyright applies to any tangible medium. This means that you must not reproduce copyright protected work in another medium without permission. This includes publishing photographs on the internet, making a sound recording of a book, and so on.

Copyright does not protect ideas for a work. However, when an idea is fixed in a tangible form, for example in writing, copyright automatically protects it. This means that you do not have to apply for copyright.

A copyright protected work can have more than one copyright, or another intellectual property right, connected to it. For example, an album of music can have separate copyrights for individual songs, sound recordings, artwork, and so on. Whilst copyright can protect the artwork of your logo, you could also register the logo as a trade mark.

Moral rights

In contrast to the economic rights under copyright, moral rights are concerned with protecting the artistic integrity and reputation of authors.

Moral rights enable the authors of copyright, literary, dramatic, musical, artistic works and a director of a film, certain rights and certain privileges which are described below:

  • To be identified as the author of the work or director of the film in certain circumstances, e.g. when the work is communicated to or where copies are issued to the public
  • To object to derogatory treatment of the work or film which amounts to a distortion or mutilation or is otherwise prejudicial to the honour or reputation of the author or director
  • The right not to be falsely attributed to a work which they have not had anything to do with or with any amendment made to their work without their knowledge
  • The right of privacy of certain photographs and films where these are created for private and domestic purposes

The author or director has to indicate their wish to exercise the right to be identified by giving notice to this effect (which generally has to be in writing and signed) to those seeking to use or exploit the work or film. The giving of notice in this way is known as asserting the right to be identified.

The author or director can waive their moral rights (This may, for example, be required by a prospective purchaser of the copyright as a condition of the purchase). This must be done in writing and be signed by the person giving up the rights. The waiver can be based on conditions to suit the owner of the moral rights and if the person does not want to waive them completely, they do not need to. In the event that the person owning the moral rights wishes to waive his or her rights, such a waiver may be general or specific (i.e. it may relate to a specific work only or to all works in general), may relate to existing or future works, and may be on a conditional or unconditional basis. The waiver may also be subject to revocation, so that a waiver, once given, need not continue indefinitely. This gives an author or director some flexibility. They can change their mind in response to changing circumstances or opportunities.

If such a waiver is made in favour of the owner or prospective owner of the copyright to the works to which it relates, it shall be presumed to extend to anyone who is granted rights in the copyright by the prospective owner (for example, under a licence) or anyone acquiring or inheriting the copyright from the prospective owner, unless the contrary intention is expressed. It should be noted that under Section 94 of the Copyright, Designs and Patents Act 1988, moral rights cannot be assigned. The owner of moral rights can, however, on his death, transfer those rights to another person by way of a Will.

The duration of the right to be identified, and the right to object to derogatory treatment and the right to keep certain photographs and films private, subsists as long as the copyright subsists in the work, which is generally the life of the author plus 70 years. However, the right not to be falsely attributed to work lasts only for the life of the author plus 20 years.

It is worth noting that there are certain exceptions which need to be considered when contemplating whether moral rights apply to a particular piece of work e.g.

  • Computer programs
  • Design of a typeface
  • Where ownership of a work originally vested in an author's employer
  • Work created for the purpose of reporting current events
  • Where material is created for use in newspapers or magazines
  • Where reference works are created for use in encyclopaedias or dictionaries

Performers' rights

Performers are entitled to various rights in their performances, whether these take place on the stage, during a concert, when making a film, when playing or singing for a sound recording and so on. Performers' rights can be broadly categorised under the headings 'economic rights' and 'non-economic rights' or 'moral rights' and grant certain rights to the performer in respect of use of a recording of a live performance. An economic right is one that is capable of being transferred or sold by the performer to a third party and then exercised by that third party. A non-economic/moral right is not capable of being exercised by anyone other than the performer.

A performer has the right to control the broadcasting of his or her live performance to the public. The permission of a performer must also be sought before a recording of the live performance is made.

Once a recording of the performance has been made, the performer's permission is also needed to make copies of that recording. A performer may be entitled to remuneration in respect of broadcasting, other types of communication to the public by electronic transmission, public performance and rental of those copies.

It will usually be necessary, therefore, to obtain permission from the performers in advance for any activity that would infringe these rights. The Musicians' Union and Equity have a number of agreements in relation to recording and broadcasting.

In many cases, but not always, the performance may be of a copyright work - literary, dramatic or musical - so the performers' rights will be in addition to the rights attaching to the underlying copyright in the performance, e.g. in the written words of a play.

Design rights

Design protection covers the outward appearance of your product, including decoration, lines, contours, colours, shape, texture and materials. If you have a new shape or pattern for a product, you may be able to protect it as a design.

In the United Kingdom designs are protected by three legal rights:

Registered designs

Registered designs give you the right to stop anyone copying or using your design in the United Kingdom for up to a maximum aggregate term of 25 years, calculated from the date of the filing of the original application. Registration is for an initial term of 5 years, renewable upon application to the Registrar within 6 months of the expiry of that term for an additional 5 years. This process can be repeated up to 4 times. If an application for an extension is not made before the end of a period of protection or within 6 months following the end of that period, the registration will lapse and the design will then enter the public domain.

Design right

Design right is a free, automatic right.

Design right gives you protection in the UK only for the internal or external shape or configuration of an original design. The right is not confined to designs that can be seen. The right has, for example, been recognised in mobile phone cases, shape elements in transformers and spare parts for vacuum cleaners. Design right allows you to stop anyone from copying the shape or configuration of the product, but does not give you protection for any of the 2-dimensional aspects, for example, patterns.

You can protect 2-dimensional designs using copyright or registered designs.

Design right lasts either 10 years after the first marketing of products that use the design or 15 years after creation of the design, whichever is earlier. Design rights give the owner the exclusive right to reproduce the design for commercial purposes and to sue a third party for infringement if that third party copies or reproduces the design. Note, however, that in the last 5 years of the design right, the design is subject to a licence of right. This means that anyone is entitled to a licence to make and sell products copying the design. If the terms of a licence cannot be agreed, the Intellectual Property Office has power to decide what the terms should be.

Copyright

If your design is artistic (i.e. a work of artistic craftsmanship) you will receive automatic copyright protection. Copyright also protects any drawings or plans of your design.

What is the law guide

The Desktop Lawyer law guide aims to present the law to you in a comprehensive yet jargon-free and easy-to-read format. Our law guide is constantly kept up to date with changes in business and family law by our team of in house solicitors, and includes information across all the legal jurisdictions in the UK.

Our law guide is free to use. Where we provide documents related to this area of law, or where they may help you with any legal issue in this area, they will be listed to the right of this message.