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Other types of intellectual property

Confidential know-how

Confidential information/know-how refers to all information held by the individual/organisation which has not entered the public domain. It can include trade secrets, techniques, experimental protocols and methods, technical information, processes, computer software, formulae, discoveries, prototypes, materials, results and data, drawings and models.

Know-how is only valuable as long as it remains confidential and is generally only used where no other forms of protection are possible and the information has a high commercial value.

Once information is put into the public domain it cannot be considered confidential, whatever the means of dissemination. The public domain includes the following: a paper, a poster, a verbal presentation or even a conversation which has not been stipulated as confidential, listing on the internet, public demonstration or use in public.

If a disclosure is made under a valid confidentiality agreement it is not regarded as a public disclosure and the information is therefore not regarded as being in the public domain.

Database rights

A collection of material that is arranged in such a way so that items are individually accessible may be protected by copyright and/or database rights. In order for copyright protection to apply then there must be originality in the selection or arrangement of the contents.

For database rights to apply it must be the result of a substantial investment. A database can satisfy both these requirements and so ensure both types of protection.

Database rights are similar to copyright; they occur automatically as soon as the materials exist in a recorded form, they can be in paper or electronic format. However, there are some differences in terms of protection period (only 15 years from making, and a subsequent 15 years from publication) and the activities which can be controlled are related to extraction and re-utilisation of the contents.

Design rights

Design rights relate to the appearance of a product rather than the underlying functionality. There are a range of unregistered and registered rights potentially available with different scope and applicability.

UK Unregistered Design Right

This is an automatic right. It protects the three-dimensional aspects of design, excluding surface ornamentation. The design must be original and not commonplace. Features that are for connecting to another article ("must fit") are excluded from protection. Protection is for up to 15 years. It protects against copying.

UK Registered Design Right

This protects the overall appearance of the design, excluding features dictated by technical function. The design must be new and have individual character. The design needs to be registered and renewed every five years (fees payable). Protection lasts for up to 25 years. It is a monopoly right (i.e. it protects against unauthorised use of the design, and you do not have to prove copying).

Community Registered Design Right

Similar in scope to UK Registered Design Right. Administered through the Office for Harmonisation in the Internal Market (OHIM) in Spain. A monopoly right with protection for up to 25 years. Fees payable.

Community Unregistered Design Right

This is an automatic right. It only last for three years. It protects the appearance of the whole or part of a product, which may include shape or decoration. The design must be novel and have individual character. It protects against copying.

Trade marks

A trade mark is a distinctive mark or logo which is used to distinguish (but does not describe) a product or service.

A trade mark can be registered (through official registries to which an application can be made) or unregistered. A registered trade mark provides greater protection or unregistered (certain rights are automatically acquired through use of a trade mark).

Certain common law rights are acquired through the use of an unregistered trade mark such as protection against passing-off (deliberate use of a mark to confuse the public into believing that the goods are made by the trade mark owner), however a trade mark can only be infringed if it is registered, and an action for infringement is generally easier, and less costly than an action for passing-off.

A trade mark can be registered in the UK with the Trade Mark registry and must be:

  • distinctive
  • a single word, logo, picture or mixture of any of these
  • can be a 3D shape – as long as not the result of function
  • must not be descriptive
  • must not be deceptive
  • cannot be a common surname or geographical name
  • cannot be a national flag or heraldic device
  • should not be confusable with an earlier registered mark.

Plant breeders' rights

Plant breeders' rights (PBR) are a form of IP designed specifically to protect new varieties of plants. They entitle the holder to prevent anyone doing the following acts to propagate material without authority:

  • production or reproduction (multiplication)
  • selling or other marketing
  • conditioning for the purpose of propagation
  • offering for sale
  • exporting/importing
  • stocking for any of the purposes mentioned above
  • any other act that may be prescribed by the provisions of the Plant Varieties Act 1997.

The holder of PBR may organise others to carry out these acts on whatever terms and conditions are imposed by the holder, subject to the safeguard of a compulsory licence.

Rights may also extend to harvested material obtained from the unorganised use of propagating material, but only where the holder has not had reasonable opportunity to exercise rights. Plant Breeders' Rights do not extend to any act done for private and non-commercial purposes, for experimental purposes or for the purpose of breeding another variety.

A holder of PBR also has the above rights for any variety which is dependent on the protected variety such as hybrid or an essentially derived variety. The UK Plant Variety Rights Office & Seeds Division of DEFRA is the organising office for these rights.