Intellectual Property encompasses several different concepts. The most well known are probably Patents, Copyright and Designs, Trade Marks and Passing Off. A little more detail on each of these areas is below.
Here at Three Stone Mediation, we can help you to resolve your intellectual property disputes in a cost-effective and positive way.
Patents
A patent gives its owner (the patentee) the exclusive right to perform the invention it discloses for a limited period. Any person who performs the same invention without the consent of the patentee is an infringer. The patentee can claim various remedies against the infringer, including an injunction to restrain future infringement and damages.
Conversely, anybody, including an alleged infringer, can apply to the Intellectual Property Office or the court to invalidate a patent on various grounds. For example, if a patent was not inventive at the date it was filed, it can be declared invalid.
The court for dealing with patent disputes is the High Court. The Patents Court and the Intellectual Property Enterprise Court within the Business and Property Courts are the main venues for patent litigation in England and Wales.
Patent litigation is typically high-stakes and high cost. One side wants an injunction and damages. The other side wants to invalidate the patent or to persuade the Court that their product is not infringing. Each side wants the other to pay their costs (which are often eye-popping in amount).
The gap between winning and losing is often vast. For a small or medium sized business, that gap can mean the difference between flourishing and insolvency.
There are also public interests at stake. The results of most civil litigation are binding on the parties only. But if a patent is invalidated in litigation, it is invalidated as against everybody. If the validity of a patent is contested and it is found to be valid, there can be significant costs consequences for future challengers.
Thus, patent disputes are perfect for mediation, particularly for small and medium-sized businesses. A well-drawn coexistence agreement can ensure that the patentee and the alleged infringer are able to get on with their businesses, leaving the patent intact and allowing the alleged infringer to do something that is not too offensive to the patentee.
Copyright and designs
Copyright is – as the name suggests – the right to copy. Obviously, as with all things created by lawyers, it’s a bit more complicated than that, but as a shorthand, “the right to copy” will do.
Copyright is a property right that arises whenever somebody creates an original literary, musical or artistic work, or when somebody creates a sound recording or a film, makes a broadcast, or publishes a literary work.
Designs of 3 dimensional articles may be protected by unregistered design rights or as registered designs.
Copyright and designs now underpin a large part of the economy. Whole sectors revolve around the sale of copies of things. Music, software, and publishing, for example. Designs can protect clothing, furniture, car wheels, and a host of other things.
As with any large commercial sphere, disputes easily arise about copyright works. In the digital age, copyright is easily exploited but also easily infringed.
With modern manufacturing methods, it is almost as easy to copy the design of an appealing article as it is to copy a downloaded song.
The scope for dispute is wide. Who created it? Was it original (or novel in the case of a registered design)? Who owns it? Who is doing what with it? Does X infringe Y? How much is that infringement worth?
Copyright and designs can lead to big disputes. Big disputes cost big money.
That’s why copyright and design disputes are ideal for mediation, particularly for small and medium-sized businesses. An orderly exit from the market for an alleged infringer on terms might be better than an expensive, destructive court case. A licence or an assignment, with money going the other way, could give each participant a win. There are as many ways to exit a dispute on sensible terms as there are ways to have a dispute in the first place.
Trade marks and passing off
A registered trade mark comprises a graphical representation of the mark and a specification setting out the goods and services which the registration covers. The owner has the exclusive rights to use the trade mark in respect of those goods and services.
A registered trade mark can be infringed by use of: an identical mark in respect of identical goods or services; an identical or similar mark in respect of identical or similar goods / services in circumstances giving rise to a likelihood of confusion; or a sign that is identical or similar to a mark with a reputation, in circumstances that are detrimental to the repute or ride on its coattails.
Trade mark registrations can be challenged by owners of prior rights, or anybody who says that the legal requirements for a trade mark were not met at the date of the application. If a trade mark is not used for 5 years, it is liable for revocation.
Passing off protects a business’s goodwill from damage caused by misrepresentation. There are many ways to make misrepresentations that damage goodwill. The classic passing off case is where the misrepresentation is made by using a similar sign or product getup to another trader. The implied representation is “My product / service comes from the same origin as Product / Service X.”
Trade mark and passing off disputes can be expensive and time consuming. The ultimate goal – to push a particular brand out of the market or to clear the way for a brand to get into the market – is essentially a destructive one.
There are some cases – counterfeiters and the like – where the rightsholder business has little choice but to pursue an action.
But in many other cases, there is no real commercial benefit in bringing or defending an action. Companies that aren’t in competition with each other, arguing over wafer-thin distinctions on the margins of infringement probably have better things to do.
That’s why trade mark and passing off disputes can be just right for mediation, particularly for small and medium-sized businesses. A co-existence agreement will likely cost a fraction of even the unrecoverable costs after a win in court, never mind the costs of losing.