A Guide to Intellectual Property for Business & Start-Ups
J.O.S Solicitors offer company law advices and services to established businesses and start-ups which range from the basics of company formation through to complex commercial drafting, each aspect tailored to the organisational needs.
During such client consultations, a common area of interest that often arises and requires clarification, is that of Intellectual Property law and rights. As a result, we now provide a brief guide to help clarify some of the key fundamentals pertaining to this diverse and intriguing area of law.
What is Intellectual Property?
Intellectual Property (IP) is the area of law which has developed over time to protect the fruits of one’s creative labour, in essence, the creations of the mind. Therefore IP is in itself an intangible property that can be traded, sold, assigned, licensed or even bequeathed. It can therefore be a very valuable commodity to a business, in the same manner as any tangible property or asset, be it real or personal.
Therefore it is crucial that business owners, either well established or start-ups, recognise what IP rights they own and how to protect them against infringement or exploitation by others.
Most Common IP Rights
There can be understandable confusion as to what exactly constitutes IP’s. The principal areas of IP are protected by numerous legislative acts and fall into three most commonly recognised categories:-
- Trade Marks
- Trade Marks
The Trade Marks Act 1996 currently governs trade mark law in Ireland.
Section 6 (1) of this 1996 Act states a trade mark is “any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings.”
While more clarity is provided in Section 6(2) where it states “a trade mark may, in particular, consist of words (including personal names), designs, letters, numerals or the shape of goods or of their packaging”
In order words, once a business or start-up has registered their trade mark, either in Ireland or internationally, that business will be protecting their company’s brand name or logo.
The Patents Act 1992 is the principal legislation governing patent law in Ireland.
Patents are the IP protection afforded to inventions, and such inventions will only be considered patentable under Section 9 of the 1992 Act, if it’s new, inventive and capable of industrial application (i.e. can be made or used in some type of industry). Once successfully registered for either a 10 or 20 year period, it grants the owner a monopoly over the claims as set out in that patent.
While enforced, it prevents all third parties from using the invention either directly or indirectly, without the owner’s consent as stipulated under Section 40 of the 1992 Act.
Again similar to trade marks, patents are territorial, therefore businesses will only protect the IP for the country in which registration is made.
Copyright is protected by the Copyright and Related Rights Act 2000.
Copyright is an IP right, whereby the owner of the work can control the use of the work, subject to certain exceptions.
Unlike trademarks or patents, there is no registration procedure for owners of a copyright work in Ireland. Essentially, the act of creating a work itself creates the copyright, which then remains within the physical expression of that work.
Accordingly, the copyright protects literary, musical and artistic works and for certain technology business, it is often the main protection for software. Although patent protection should still always be considered.
The owner of the copyright has therefore exclusive rights under Section 37 of the 2000 Act, to prohibit or authorise others to do the following:
- to copy the work
- to make the work available to the public; and
- to make an adaptation of the work.
The duration of copyright protection varies according to the format of the work, and can range between 50 to 70 years.
As alluded to above, it is also important from a business perspective, to understand the general rule that the author of the work is the first owner of the copyright. However, an exception applies to employees unless their contract of employment states otherwise.
As under Section 23(1) which states where “the work is made by an employee in the course of employment, in which case the employer is the first owner of any copyright in the work, subject to any agreement to the contrary”.
It is understandable how confusion can arise for any business and particularly start-ups when trying to grapple with such technical terms. Ultimately, it should be remembered that IP rights are a valuable and advantageous commodity for any business, not only in monetary terms but also from a competitive perspective.
It is therefore imperative for many businesses to ensure the relevant protection is sought and obtained for their individual IPs. Furthermore, the appropriate and necessary contractual provisions should always be included in any commercial or assignment agreements to extend such protections. Failure to ensure such requisite safeguards can significantly jeopardise an organisations strategic success and future investment opportunities.
If you would like J.O.S Solicitors to assist your business or organisation with its Corporate Law or Intellectual Property needs, or to simply require more information then please contact us.
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by J.O.S Solicitors for any action taken or not taken in reliance on the information set out in this publication. Any and all information is subject to change and professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication.