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.

A copyright is a legal right protecting an original work created by an individual and fixed in a tangible medium. Similarly to other types of IP rights, copyrights prevent others from using original work without prior permission from the owner. This can include the prevention of other people copying or adapting your work, distributing, renting, or putting copies of your work online, or performing your work in public. However, one of the most significant differences of copyrights from other types of IP is that they are granted automatically, as opposed to needing to be applied for and examined prior to the granting of protective rights by a specific patent office. A copyright is therefore assumed to be in place from the moment one produces original literary, dramatic, musical and artistic work, including photography, as well as non-literary written work such as software, web content or databases. The layout of published versions of written, dramatic or musical works, recordings of film, television, sound, music, or broadcasts are also subject to copyright protection.

The validity period of copyrights can vary for each type of work in different jurisdictions, and can be governed in other countries by national laws based on minimal standards provided in international agreements such as the Berne Convention.

In the UK, written, dramatic, musical and artistic works, including photography, are typically protected by copyright for 70 years following the year of the author's death, films for 70 years from the death of the director, screenplay, author and composer, whichever occurs last, and sound and music recordings for 70 years from the first date of publication. Broadcasts are protected for a lesser term of 50 years from the first broadcast, whilst a layout of published versions of written, dramatic or musical works is valid for 25 years from the first publication date.

Whilst a copyright is automatically available for the aforementioned works, the onus is on the owner of the right to protect it against infringement. In this regard, although some use of a copyright is allowed under certain circumstances, such as fair use, the majority of third parties who wish to use a work for a commercial purpose must first obtain a permission or license, a contractual agreement between the owner and the user of the right. A licence can be used to control the ways in which the work is used, as well as the length of time it can be used for. Other contractual agreements also come into play when it comes to things like negotiations of the sale or transfer of rights via assignment, or the organisation of economic rights, for example.

Certain parties such as schools, archives, public administration or libraries may be able to use the work without permission from the copyright owner, and therefore it is important to verify if the use you wish to halt qualifies as infringement before taking action.

The above covers the basics of copyright in the UK, however, the law on copyright in other countries may differ. For more information on copyright in your jurisdiction, please contact us.

It is safe to say that we all know the importance of innovation and its place in society. Pharmaceutical inventions, for example, have saved countless lives, with vaccines being one of the most discussed topics of 2020. They are vital to public health, and policy makers must weigh up the factors of pharmaceutical patent rights compared to the accessibility of the inventions to the public, but what is a pharmaceutical patent?

A pharmaceutical patent, much like a regular patent, grants exclusive right over the use of an invention to the patent owner, however there are a few differences in terms of validity periods and licensing. In addition to the basic validity period of 20 years from the filing date, a Supplementary Protection Certificate (SPC) may be granted in respect of pharmaceutical patents in more than 20 countries, including the US, UK and some countries of the EEA (European Economic Area), for example. The latter issues the SPC, which allows for an extension providing either an overall maximum of 15 years of exclusivity from the date of the first marketing authorisation (MA), or 5 supplemental years after the expiry of the patent, and is designed to compensate the inventor(s) for any time lost between the granting of the patent and the MA of the same.

In the UK an SPC will not extend the term of a patent, but gives similar protection, which enters into force when the patent expires and can last for up to 5 years. An SPC for a medicinal active ingredient may also be extended for a further six months if it has undergone the appropriate pediatric testing. It is worth noting that this may be subject to change after Brexit is finalised.

A similar system applies in the US, however, the Certificate Extending Patent Term applies to the entire patent in this jurisdiction. Furthermore, the term of a patent eligible for extension shall be extended by the time equal to the regulatory review period for the approved product. Such period occurs after the date the patent is issued, whereas in the EEA the scope is narrower, applying only to the active ingredient(s) of the patented product.

The duration of the certificate can also be limited in certain instances, for example, when a patent term has already been extended under a specific national law.

Although patent protection contributes to greater pharmaceutical research funding, which is a strong incentive to continued development of life-saving inventions, it can also hinder individuals from obtaining the treatment they need due to monopolization of patented treatments and corresponding increases in costs. A possible remedy to this is compulsory licensing, a mechanism which allows another party to produce a patented product or process without the express consent of the owner of the pharmaceutical patent itself. Safeguards such as this ensure that the pharmaceutical industry can be compensated for its scientific advances and contribution to the public health, while also preventing monopolization. On the flip side, however, critics have argued that licensing may create incentive issues, with companies purchasing licenses and increasing treatment costs as opposed to researching and developing new ones.

The socio-ethical implications of pharmaceutical patent rights on the wider public health are contentious, and require a collective approach of resolution. A combination of policy reform, standardised pharmaceutical state funding, company obligations, and a collaborative commitment to the stabilisation of pharmaceutical treatment costs may be the key to fairness and accessibility for the good of public health.