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Can I use the trade mark notice ™ on my marketing and advertising materials and packaging even if I have not registered my brands?

Yes.  The trade mark notice ™ indicates that your brand, whether it is a word, series of words, symbol or logo is being used by you as a trade mark and you should use the trade mark notice to maximise your protection.

Can I get legal protection for a trade mark which is not registered?

Yes but only in the geographic area in which you can show you have a reputation. It is easier to protect a mark which is registered. A registered mark also gives you a monopoly right for the whole of the UK(or whichever country you have obtained registration in).

If I apply for a Community Trade Mark and there is a problem in one country which means that I cannot or do not want to proceed in that country can I still get a registration for the rest of the EU?

No. A Community Trade Mark application is for all or nothing. If you have a problem in one or more member state of the EU you will lose the application and will need to start again by applying in each member state in which you want protection.

If I have sold my branded goods in the EU can I stop them from being resold by one of my customers via particular distribution channels such as discount shops or on eBay?

It depends! Generally it is not possible to prevent how your products are dealt with once they are sold in the EU. If you can show that you have a valid reason for managing your distribution channels and have in place an active distribution channels policy then it may be possible. This is a complicated area of the law and it may be worth you having a conversation with one of our lawyers to explore your options.

If I have already sold my product can I still apply for registered design protection?

Yes you have 12 months from the first sale or marketing of a new product to get registered design protection. 

If I have no registered design protection and a competitor is copying my designs can I stop them?

You may be able to stop them if your design is less than 10 years old and is not a commonplace design. This is a complicated area of law and requires careful consideration. John Sykes has just updated his reference book for lawyers on Design Law and John, or one of the team would be happy to advise you.

Be careful because making a threat to a competitor may be grounds for the competitor to bring proceedings against you for “groundless threats”. A threat would include making a complaint to eBay or Amazon to take your competitor’s products off sale.

Do I need to register my work to get copyright protection?

Not in the UK but it may be recommended for the USA and China. 

If I have paid a web developer to build my website do I own the copyright in it?

No! Not unless the web designer has also signed a contract which says that he is assigning any copyright in his work to you. It is an oft misunderstood situation. Just because you have paid for a website designer - or photographer or graphic designer or musician - or anyone who has created a copyright work on your behalf and paid them - does not mean you own that copyright work. You only have a licence to use it. 

You must get a written agreement in place in which the creator of the work clearly transfers ownership of his/her copyright to you.

I have shown my invention to my friends in the pub and they think I should get patent protection for it.  Can I get a patent?

Not unless:

  • your friends were bound by terms of confidentiality because you cannot get patent protection for an invention which has been disclosed AND
  • your invention is new AND
  • your invention is capable of industrial application

If you want to show your ideas to third parties whether friends or potential customers or manufacturers you MUST HAVE A CONFIDENTIALITY AGREEMENT in place.  If the answers to the above questions are all "yes" then speak to us about getting patent protection.

I told my friend to keep my idea for an invention secret. I think he is working on building a business to exploit it. Can I stop him?

Only if you have a patent application in place which successfully proceeds to grant or he has copied an original material work you created or own. So, for example, if you built a prototype or created drawings of your invention and your friend has copied these.

You could issue proceedings for breach of confidence but this is a difficult claim to bring if there is only your word against his and he may not be "good for the money" and/or you do not want to spend the monies required on legal action to get an injunction and any other legal remedies to which you may be entitled.

Can parody be copyright infringement?

In a further case (Deckmyn and another v Vandersteen and others, Case C-201/13, 3 September 2014.) the European Court of Justice (ECJ) has given a ruling on the meaning of parody as a new exception to what would otherwise be a copyright infringement.

The exception is contained in Article 5(3) of the Directive and refers to the use of a copyright work for the purposes of caricature parody or pastiche Article 5(3)(k). In this case the court ruled that the concept of parody is a new one in EU copyright law. The concept needs to be given a consistent meaning throughout the European Union. It should be noted that there is no definition of parody in the Directive itself so that the meaning and scope of the term to be interpreted in accordance with its normal everyday meaning.

The court will adopt the essential characteristics of a parody namely to:

  • to evoke an existing work while being noticeably different from it.
  • to be an expression of humour or mockery. Other criteria such as originality, referencing the original work and someone were not required.

It was noted in this case that the Directive as a whole had the purpose of trying to seek a balance between the right and interests of authors and the rights of people who wanted to use copyright material. The exceptions referred to in this article of the Directive were part of an attempt to achieve that balance.

Since there is no definition of a parody and the scope and meaning of the exception for parody, caricature and pastiche will need to be decided on a case by case basis in the circumstances of each of those cases, this exception to copyright infringement may well prove difficult to apply with certainty in practice.

When is it legal for libraries and others to copy materials?

A recent ruling (Technische Universität Darmstadt v Eugen Ulmer KG, Case C‑117/13, 11 September 2014.) the European Court of Justice (ECJ) ruled that libraries, museums and others can lawfully copy materials they are holding for the use of research and private study.

By way of background, the Copyright Directive 92001/29 EC) seeks to harmonise copyright laws in relation to copyright across the whole of the EU. Article 2 of the Directive establishes an exclusive right for authors to reproduce their works. Article 3 provides an exclusive right for communication by those authors of their works to the public.

There are some exceptions in Article 5. It is one of those exceptions which is the subject of this ECJ decision. 

Article 5 (iii)(n) also provides that libraries, museums and so on may make available copyright material to individual members of the public by dedicated terminals on their premises whereby these are not subject to specific agreements with the rights holders.

Interestingly, digitisation of works contained in the library's collection so that these could be made available through the terminals is permissible. However, the printing of such works on paper and the storage of aspects of them on a USB memory stick even if carried out by individual users accessing the material on dedicated terminals is not permitted.

The court noted that such printing or storage on a memory stick might be authorised under different legal provisions binding on individuals who wish to make copies for their own private use.  There may also be national rules about authorised rules of copyright works which may be applicable. 

This ruling gives important clarification in the public sector arena as many institutions such as libraries, museums and other educational establishments have a vast catalogue of works in hard copy. In a world where increasingly individuals want to access information electronically, remotely and often on the move, the ability of public institutions to digitise this vast content and make it available on line is not only sensible, but essential if those institutions are to modernise and be fit for purpose in a digital online world.

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If you would like help and advice, speak to a member of our team today. Find the number you need on our contact page.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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  • This firm maintains a fine reputation across the region with offices in both Leeds and Sheffield. Its work encompasses a wide range of IP protection, including licensing agreements, enforcement injunctions, and portfolio management. In a recent highlight, it assisted PWS Distributors on matters concerning design rights and brand infringement. The group also counts Jacuzzi, Card Factory and Nufarm amongst its other major clients.

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    Chambers and Partners

    As a small and creative company, we need legal advice, which is relevant and proportionate. We have found Lupton Fawcett to be excellent on a range of issues from intellectual property to bad debt to employment. Lupton Fawcett listen well and then give expert and speedy advice, which is appropriate to our specific situation. They have also earned our trust by telling us clearly when legal action is not advisable, where other lawyers might have charged for a few meetings before reaching the same conclusion.

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    Rachel Van Riel, Director, Opening the Book
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