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Brands and IP myth busters

22 May 2017

Key take-aways from our recent Brands and IP: Myth Busters seminar.

Myth: I need to register copyright or put a © sign to gain copyright protection

Busted: In the UK , copyright protection arises automatically on creation for materials that are capable of copyright protection and that meet the threshold for copyright to subsist. You don’t need to register your copyright (in the UK), or put any symbols next to the materials in order for it to be protected, although it is often recommended that such a symbol be used to communicate to others that you consider that your materials benefit from copyright protection.

Myth: If I use only 20 seconds of music or 8 bars of a song then I don’t need permission from the copyright owner

Busted: The test for copyright infringement is whether or not a substantial part of the original work has been copied. This test is more qualitative than quantative but both are relevant to the assessment. The reality is that if only a small part is copied, if that part is significant (eg. the hook of a song), then it may still be an infringement of copyright.

Myth: If I make 5 changes to my design then I won’t infringe design rights

Busted: There is no magic number of changes required to avoid infringement. A registered design right has been infringed if the new design creates the same overall impression as the registered design. The more unique the original design and the greater the design freedom for the subject of the design, the greater the changes required to create a different overall impression.

Myth: It’s on social media/the internet so I can use it

Busted: Materials protected by intellectual property rights are still protected, even if they are on social media or other internet sites. Social media platforms terms of service will probably allow you to share, comment, repost content but only within the same social platform. You will still be infringing rights of IP owners or individuals featured in the content if you use the work without consent

Myth: TM means registered trade mark

Busted: You have probably seen the TM sign on various products and in advertising. TM does not necessarily mean that a trade mark is registered, though many global brands use the sign because most consumers think it means “Trade mark”. In the UK ® means “registered trade mark” but beware of using it if you don’t have the trade mark registered, as it is a criminal offence to use the ® sign with a mark that is not a registered trade mark.

Myth: If I give a licence to a third party to use my IP and I want to continue using that IP I should make my licence sole and exclusive

Busted: A licence cannot be sole and exclusive. An Exclusive licence is a licence that prevents all others from using the IP, including the IP owner who is giving the licence. A sole licence means that it is the only licence the IP owner has granted but the owner of the IP is still entitled to use the IP themselves. Consider carefully what type of licence you want to issue and, if you do want to retain the right to use your IP, you should issue a sole licence rather than an exclusive one.


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Myth Busters

18 May 2017

Focused on non-lawyers and those without an IP background this session will provide a safe space to ask those burning questions about the use of IP in the creative sectors.

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