Brand protection 101 – The IP essentials

New to the world of intellectual property and brand protection, or just looking for a brush up on the essentials? We’ve got you covered.

We’ve compiled a comprehensive guide on the essential things you need to know about IP and brand protection, helping you to navigate through the law, the terminology and the types of programmes that companies enact. By the end of this guide, you’ll be well versed in brand protection and be able to champion its adoption within your organisation.

As a starting point, it is critical to understand the essentials of intellectual property before looking at your brand’s issue. In part 1, we have listed the types of intellectual property that are most commonly infringed online, and the relevant laws used to enforce against bad actors.

IP – The essentials

When enforcing, it is imperative that you include the relevant documentation for the rights you believe are infringed. This documentation differs based on region and local IP law. However, within the majority of jurisdictions, original works, products and designs can be protected under one or more of the following broad intellectual property categories.

Copyright

Once you create an original work, it is yours to own. Copyright is a core type of intellectual property, covering original works such as literary, video, audio or other artforms, rather than physical products. The Berne Convention ensures that copyright exists as soon as work is created; registration is not needed in regions such as the United States, United Kingdom and EU.

The Digital Millennium Copyright Act currently provides the legal definition of copyright infringement in the US, with provisions for how intellectual property owners can enforce their rights.

Trademarks

Anything that can be used to differentiate your products or services from others is potentially a trademark, but they usually take the form of words, logos, patterns and shapes associated with your brand. A trademark can be either registered or unregistered. Similarly to copyright, a trademark is legally created as soon as a unique mark is designed. This starts, however, as an unregistered trademark which is more difficult to enforce on.

The Lanham Act is a federal statute in the US that provides legal protection of registered and unregistered trademarks (including trade names and trade dress). The Lanham Act also allows for legal action against trademark dilution, cybersquatting and unfair competition claims.

English Common Law

In English Common Law, the Merchandise Marks Act (1862) and Trade Marks Act (1994) protect both registered and unregistered trademarks from bad actors trying to ‘pass off’ or misrepresent the goodwill and reputation associated with your brand. However, to legally make a case, you need to be able to evidence all three of the below factors:

  • The goodwill associated with your brand
  • Misrepresentation of your brand
  • Damage to your brand
Madrid Protocol

The Madrid Protocol (1861) is the primary international system for facilitating trademark registration and covers multiple jurisdictions around the world. The Madrid Protocol does not, however, provide a single ‘internationally effective’ trademark for rights owners. A brand owner instead uses the international registration service as a starting point, before registering their trademarks in each member country individually.

Design rights

Design rights refer to the shape and configuration of an object. There are two types of design right: registered and unregistered. In the UK, unregistered unique designs are automatically protected by ‘design right’, lasting for 10 years after first sold, or 15 years after first created, whichever comes earliest.

Registered designs provide better protection, preventing others from copying the design for up to 25 years (this has to be renewed every five years to remain active). Two-dimensional designs must be registered in order to bring a case for infringement.

Within the EU, ‘unregistered community designs’ such as patterns can be automatically protected from copying for 3 years. However, in the US, unregistered designs are not legally protected, requiring brand owners to instead register their works as patent designs or trade dress.

Brand protection programmes

You’re now equipped with knowledge on the IP essentials and will be able to identify the types of infringement impacting your brand. Next week, we dive into the core types of brand protection programmes and when best used by rights holders. By combining insights found in this two-part guide, you will be able to determine the type of brand protection programme best suited to deal with your issue.

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At Incopro, we work with our clients to create effective online brand protection strategies, leveraging our expertise in intellectual property, criminal intelligence and technical design. If you believe your IP is being infringed and are interested to see the scale of the online threats, you can request a free Brand Health Check below.

Our obligation-free Brand Health Check provides a high-level overview of the online threats to your brand, prioritising these by visibility to consumers, the platforms they are discovered on, and the regions they target. Your health check will highlight how you can eliminate these threats and capture the value you are missing.

Request a brand health check

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