Intellectual property is a pinnacle of modern society, with a multitude of popular cultures being governed by undercurrents of IP without many realising. From chart music to toy brands and beyond, there is much to explore when it comes to some of the most well-known and non-traditional intellectual property, and we have explored some of the finest examples.

Trademarks are one of the most valuable types of IP used by some of the biggest powerhouses in all industries, and whilst many marks are more traditional, some businesses have chosen to go down a more atypical route, resulting in some of the most well-known and recognisable IP.

These include the toy company Hasbro, which took a chance on, and successfully registered, the iconic and widely recognised Play-Doh scent on May 15, 2018 with the United States Patent and Trademark Office (USPTO).

Whilst not unheard of, scent marks are among one of the lesser obtained trademark types, due to the more stringent requirements which need to be met in order to obtain scent mark protection. In the US for example, it is outlined that the "amount of evidence required to establish that a scent or fragrance functions as a mark is substantial".

Such evidence is required to demonstrate that the scent itself has acquired distinctiveness. Further, the scent of the item should not be an important practical function, rather, it should merely assist as an identifying element used to distinguish the brand to which it relates.

Play-Doh managed to achieve this feat, with the scent described on the trademark register as a "sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough." Although a vast majority may not pick up on the particulars of the fragrance by simply smelling it, the nostalgic scent is distinctive enough on the whole to be recognisable to many as the smell which belongs to Play-Doh. The scent has also been released as a perfume, which would no doubt be a niche and memorable gift to anyone with fond memories of using Play-Doh.

Unlike trademark protection, copyright can prove more nuanced when it comes to lesser traditional forms of creative work. Commonly, people would consider paintings or literary works as typical copyright works, but tattoo artist S. Victor Whitmill made headlines with regards to his iconic tattoo design made especially for the boxing legend Mike Tyson. The tattoo, which was initially created in 2003 by Mr. Whitmill, created a stir when seen in the hit film "The Hangover II". The film depicted a character played by Ed Helms sporting the tattoo on his face, duplicating the design created for Tyson.

A mere few weeks prior to the release of the film, which ended up becoming the highest grossing comedy film to date, Whitmill instigated copyright infringement proceedings against Warner Brothers over the use of the tattoo design. Whilst the initially sought after preliminary injunction was denied, the Judge noted there was merit to the case and the lawsuit ensued. The case was settled with the terms kept under lock and key, however, Warner Brothers acknowledged a few weeks before a conclusion was reached that they may have considered digitally altering the tattoo so as to eliminate potential infringement.

The unusual case not only sheds light on the complexities of intellectual property protection in a fast evolving digital landscape, but on the intricacies of copyright as a whole. Whilst other works such as art pieces or literary novels have a plethora of legal precedent surrounding their protection, tattoos are more unique in terms of copyright protection.

Copyright law in the UK allows the designer of the tattoo to enjoy the IP rights to the piece, entitling them to any royalties should an image of the tattoo be reproduced. This means that even though the tattoo may be unique to you, but a tattoo artist designed it, the copyright will lay with the artist. On the other hand, if a person creates a tattoo design themselves, the copyright will belong to them. These lines of copyright ownership can become blurred in cases where an artist is commissioned, for example, to create a custom design using your ideas, at which point joint ownership may be considered.

Whilst protecting more obscure or unusual intellectual property possesses its risks and requires much thought, trademarks such as Play-Doh and copyright battles such as Whitmill's tattoo design demonstrate that risks can pave the way to great reward when it comes to IP. If you would like advice on the protection of your intellectual property, please contact us.

Intellectual property is vital to business growth and brand recognition, but it can be difficult to know where to begin, especially for small and medium sized enterprises (SME's). A 2019 study by the EUIPO and EPO demonstrated that SME's which filed for at least one IP right were 21% more likely to experience subsequent growth and up to 33% if bundles of IP rights were filed, i.e. a combination of patents, trademarks and designs. So how does an SME approach this?

One of the most important elements in separating a new business from its competitors is the branding. Creating a brand with a slogan or logo that draws people in and is trusted is a lot of the fight toward becoming a reputable SME which will be chosen over its competitors. It is also crucial for SME's to obtain trademark registration to protect them against unfair competition, preventing others from utilising a similar or identical mark for their own gain, misleading or confusing consumers by mimicking another brand’s trademark, or wrongfully benefiting from another company's good reputation.

With a large number of SME's constituting tech businesses, patents and utility models can be essential in protecting advancing technology which can catapult their success. Approximately 18% of all patent filings from Europe submitted to the EPO in 2020 were made by SME's or individuals, showing that although the majority are from business giants, smaller companies are joining the trend. However, due to globalization, patent protection in multiple jurisdictions is becoming more and more commercially necessary, which can amount to hefty filing and enforcement fees that smaller businesses may not be able to pay. On the flip side, a niche innovation could be worth spending a substantial amount in the beginning, in order to reap the benefits of ownership, lucrative licensing and the propensity to garner a substantive patent portfolio in the future. Therefore, evaluating which innovations to prioritise for protection may be a middle ground for SME's which won't incur as heavy a cost as patenting all of the business’s inventions, and might pay off in the long run.

A unique design can set a brand apart from its competitors in a bold way if done correctly. If, for example, a chair is designed in a more ergonomic way than its competitors, consumers are undoubtedly more likely to opt for the better design. To protect a design like this from being imitated by other companies, an industrial design right can prove effective for SME's, as they can present as a consumer-facing piece of IP which can substantially contribute to the reputation of the business and their products.

If you are interested in knowing more about IP for SME's, feel free to contact us.