One Product, Multiple Intellectual Property

Did you know that a single product may comprise multiple forms of intellectual property?

To illustrate this, let’s imagine a new type of pen. Assume that the pen has a novel shape and surface decoration and that the mechanism for extending and retracting the writing nib is new. The pen is sold individually packaged and is provided with operating instructions to explain how the mechanism for extending and retracting the nib is used.

Patents protect functional innovations that have a technical effect, which are new and inventive and capable of industrial application. In this pen, there may be patentable inventions in the new mechanism for extending and retracting the nib or perhaps the composition of the ink. There may also be patentable inventions in the method of making the pen casing or the pen’s components, or even in the method of assembling the pen. If the pen is packaged in novel packaging, there may also be patentable inventions in the way the packaging is assembled or the way it holds or displays the pen or even the way it is opened or closed.

Design rights protect the appearance of an article. Unregistered designs rights can subsist in the shape of the pen if it is new and was not commonplace in the field of pen designs at the time of its creation. It is possible to obtain a registered design for the shape of the whole of the pen shape or even just part of the pen shape, if there is a part of the pen design that is new and unusual. In addition, it is possible to obtain registered design protection for the surface decoration of the pen. So, if the pen has a new and unusual pattern or texture on the surface, this may be registrable.

Copyright is likely to exist in the operating instructions. Furthermore, there may be copyright in any marketing material and advertising campaigns. If the pen is particularly unusual or hand crafted, there could be copyright protection in the pen as an artistic work. Copyright may also subsist in any design document or model prepared during the development of this product, although it would not be an infringement of that copyright to make an article to that design or copy an article made to that design.

Trade mark law protects the product branding under which the pen is marketed. For this product, there may be a trade mark for the company name and there could also be a trade mark for the pen product name.

Furthermore, if the pen is sold in sufficient quantities to acquire goodwill in the pen product name, then this product name may become protectable under the Tort of Passing Off. This is a common law tort that protects the goodwill in a mark acquired through use.  

Finally, there may also be trade secrets in aspects of the pen that are maintained confidentially and cannot be reverse engineered from the product on the shelf. Trade secrets are most commonly protected by contract law and need to be very carefully guarded.

Thus, we can see that many different types of intellectual property may reside in a relatively simple product. It is always worth taking a step back to look at the bigger picture and consider types of intellectual property that you may not usually work with. 

We are always happy to help you in this. Should your company require any advice or further information on this topic, please contact us.