How to avoid infringing others’ IP rights
by India Hyams, paralegal at Rocket Lawyer
Creating something new is a powerful way to add value to your business - whether it’s a theatrical epic or a catchy slogan for your brand. This value can evaporate quickly if it turns out that you’re infringing on somebody else’s intellectual property rights, and they decide to act to protect their rights.
What is intellectual property?
Intellectual property (or ‘IP’) refers to intangible assets that somebody has created by creativity or innovation. Things that can be IP include writings, inventions, music, images, computer programmes, product designs and more.
IP can be protected in different ways depending on the type of creation you want to protect. For more information, read our blog post on protecting IP that you have created.
How will I know if I’m infringing somebody else’s IP rights?
Different types of IP are infringed in different ways. For example, you could infringe somebody else’s copyright over a work by, without having a licence to use the work:
- copying the work
- renting, lending, or issuing copies of it to the public
- performing or showing the work
- making an adaptation of the work
You may, however, be able to use a defence to any copyright infringement claims. For example, it is a defence that you were using the copyrighted work for educational purposes or if you can claim ‘fair dealing’ (eg you used the work for criticism or non-commercial research).
Patents and design rights can be infringed in similar ways. For instance, you may infringe on somebody’s design rights if you make a product which looks like somebody else’s product.
Trademarks can be infringed in a similar way to copyrights, but in some ways, accidental trade mark infringement can be even easier. For instance, just using a similar mark on your products which may cause consumers to associate your similar mark with another’s registered trade mark can constitute infringement.
What if I don’t know that I’m infringing somebody else’s IP rights?
We’ve established that it doesn’t take that much to infringe upon somebody else’s IP rights. And doing so, even by accident, can have serious consequences. You can be taken to court and, if you’re found to have infringed somebody’s IP, ordered to pay damages (compensation) to the person whose IP you infringed.
Reassuringly, independently coming up with something which somebody else has also come up with (i.e. you did not copy them), which is protected by copyright or design rights, is likely not an infringement. If you use a design or work which you did not know was protected and you had no reason to believe that it was, you may not have to pay damages. However, the IP owner can still prevent you from using the work, and this kind of ignorance can be hard to prove.
So, although innocent infringement may not be penalised, or may be penalised less, it can be hard to prove. Therefore, it is best to be proactive about avoiding claims in the first place.
Let us offer some top tips for avoiding infringing others’ IP.
- Originality and record keeping: the best start is to be genuinely original. However, as noted above, originality is not a guarantee that you’ll avoid IP infringement claims. To help you prove the originality of your ideas in the event of a claim, you should take careful records of your processes for creating and using an idea.
- Do your research: for example you can search for and request a licence to use copyrighted work through licensing bodies and collective management organisations in the UK. You can also search the Government’s trademark register for UK trademarks. Searching for your ideas on social media and search engines can also help you to see if somebody else has already had your idea.
- Communicate: if you desperately want to use somebody else’s IP, for example if you want to use somebody’s song in your film or their drawing in your business’ logo, you can request that they licence its use to you (i.e. form a licence agreement with you so that you can use their IP in return for a fee). If the IP owner isn’t using the IP anymore, you could ask them to assign (i.e. transfer) its ownership to you in exchange for a fee.