Voices // Pub Law – some things you might hear in the pub, but is it really law?

by Withy King

We're frequently asked about things which I would loosely call “pub law” – in other words, someone’s heard it from someone, quite possibly in the pub, and that information gets passed around like a nugget of gold! I’d like to share some of these nuggets with you, and explain the real deal….

I can take 5% of what anyone else has done and it’s ok isn’t it?

Well …. no not really. So copyright automatically exists in images, software, music, written and graphic works. If someone copies a work in which copyright exists – such as one of the ones above – or copies a substantial part of it, then that is a breach of copyright. This means the owner of the copyright can bring a claim for breach of copyright. The substantial part is the tricky bit and this is where the “5%” suggestion arises – however if someone copies even a tiny part of the work and qualitatively that tiny part is a substantial part, then that is a breach. To give you an example, if someone copied the first few bars of a song where the first few bars were totally distinctive and made you immediately think “that’s The Who”, “Madonna” or whoever it might be, then those few bars – qualitatively – are going to be a substantial part.

I want to patent my brand…

Actually you don’t because patents protect inventive products and processes…..think Dyson cyclone vacuum cleaners – where the technology was originally patented. For brands, what you need to be thinking about is registering a trade mark if you wish to properly protect it. If someone then uses a registered trade mark without the owner’s permission, this is likely to be a breach of the trade mark.

I’ve protected my brand because I’ve registered the company name, haven’t I?

Unfortunately registering a limited company is no legal protection for the brand. If a company name is registered, and over time you build up a reputation in that name, then you might have unregistered rights which you can protect through the law of passing off. However registering a company name on its own, and not building up goodwill, develops no legal rights in the brand. If you wish to protect your brand, you need to think about registering a trade mark as well as having a company registered. Trade marks are registered on a country by country basis and in relation to the goods/services that you use the brand.

I’ve seen “TM” next to a competitor’s name, so they’ve registered a trade mark?

“TM” doesn’t mean that a trade mark is registered and does not denote anything specific in law. It is sometimes used by organisations as a means of deterring others from using a brand, but it does not necessarily mean the brand is registered as a trade mark. However if you see ®, this does mean that a trade mark is registered, and indeed using ® when a trade mark is not registered is a criminal offence. The only way of really checking if a trade mark is registered, is by engaging expert assistance to do trade mark searches.

I’ve invented something whilst working at my company, so that means I own it?

If you invent something whilst you are employed by an organisation, your employer is the automatic first owner of the rights in that invention. This also applies to any documents you have created, images or logos you have designed, products you have designed and any other intellectual property created during the course of your employment duties. If however you created the invention / design outside the course of your employment duties – so it did not fall within your responsibilities – it may be that you own the intellectual property.

The position is different if you are a contractor and not employed, and you create intellectual property – in these circumstances, the first owner is you, as the creator.

All the work contractors do for us is owned by us, isn’t it?

If you have workers working for you who are not employed (e.g no PAYE is paid, no employment contract), then they are contractors. Contractors own the intellectual property in the works they create – whether that is products, inventions, software, designs or imagery. Therefore as an agency, it is important to engage contractors with a proper legal agreement which includes provisions that the intellectual property is transferred to the agency.

Written by Jessica Bent, Withy King.

Image: Dave North.

Our Technology and Media team are experts in protecting your intellectual property and can assist you in the preparation of an appropriate agreement. Please contact Jessica Bent at Withy King for further info by email jessica.bent@withyking.co.uk or call Jessica on 01225 730100.