ACID’s Frequently Asked Myths & Howlers – Legal Tips

ACID’s frequently asked “IP myths and howlers”….or frequently asked WRONG questions!

How do I register my copyright?

You can’t because in the UK copyright arises automatically upon the creation of a work in a tangible form (e.g. a design drawing); there is no requirement for registration. However, in the USA you can register a copyright.

Where can I patent my design?

You can’t unless you have created a new and inventive product or process. The relevant form of protection for most designs is UK design right which protects the shape and configuration of the design and unregistered Community design right which protects the shape, contours, lines, colours, texture and ornamentation of a design. Design rights arise automatically but, for stronger protection, a Registered UK or Community design can be obtained for a payment of a fee.

Visit the IPO Website

Visit the OHIM Website

If someone makes seven changes or a certain percentage change to a design it becomes a new design!

WrongI It is not the number or percentage of changes that somebody makes to your design but the importance of the elements which they have taken from your design which is important in deciding whether they have infringed your rights in your design.  This will always vary from case to case.

Registering designs is useless because if you make one slight percentage change in the design the registration is invalid

Wrong, because the test for whether a design infringes a registered design is whether it creates the same overall impression as the registered design on the informed user.  It is not simply about counting the number of elements of the design which have been reproduced or changes which have been made to it.

I want to register my design to protect the way it works

You can’t because you would have to apply for a patent rather than a design registration. However, to obtain a patent you would have to demonstrate that the way that your design works is novel and inventive.

I have protected the name of my business because I have registered the name at Company’s house

You haven’t because a registered company name does not give you rights in the name which you can enforce against third parties – for this you need a registered trade mark.

My freelance designer doesn’t have any claim to the rights in my design!

They might because if they produce a design for you, you will only own any UK unregistered design right  which might subsist in the design. There may be other IP rights in the design which you do not own, such as copyright and unregistered Community design right. If you want to own all the intellectual property rights, the best plan is to ask the freelance designer to assign these to you in a written agreement, preferably before they do any work.

If I do not include the ©2009 (name) notice on my work I will not benefit from copyright protection

Not true! In the UK copyright arises automatically when you record your original work in a tangible form. However, it is wise to include such a notice because it notifies others that you are claiming copyright in your work.

If I register a copy of the design before the originator I own the design

You don’t necessarily because whilst you will technically be the owner of the registration, the originator would be able to seek a declaration of invalidity of your registration.

I applied for a registration for my design because I own the company

Wrong! because if you created the design in the course of your employment, even with your own company, the company alone has the right to register the design. The registration will therefore be invalid.

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