What are IP notices and why should you use them?

©, ® and TM are intellectual property notices that provide the public with notice that you have acquired certain intellectual property rights.

Although using these symbols is not mandatory, doing so provides a visual notice of the existence of certain intellectual property rights. Using them will discourage infringement and prevent others from claiming that they were unaware of your rights.

What are copyright notices?

If a work satisfies the requirement of originality, copyright will automatically subsist once the work is recorded. The Copyright, Designs and Patents Act (CDPA) 1988 does not require the work to specifically incorporate a copyright notice. Although, there are no formalities to acquire copyright protection it is advisable to keep clear records and evidence of any works which your company has created. It may be useful to use an audit trail. This may be needed should you ever act against a third party using your protected property. Furthermore, as a copyright owner is it advisable to mark copyright material with the internationally recognised copyright symbol © followed by the name of the copyright owner and the year of publication. For example, © Bird & Bird 2020.

Copyright notices serve as a reminder to third parties that copyright exists, and action may be taken against them if they use it without permission. Furthermore, the inclusion of a copyright notice puts any potential infringers on notice of your rights and may ultimately, help to prevent them arguing that any damages they are due to pay should be reduced because they weren’t aware of your copyright.

What are trade marks?

Similarly, there is no requirement for a trade mark notice to be used and you will not lose your rights if you fail to use a notice. However, it is advisable to use trademark notices both for unregistered and registered trademarks. For unregistered trademarks, the mark should be accompanied by the words ‘trade mark’ or the ™ symbol. For registered trade marks the words ‘registered trade mark’ or alternatively, the symbol ® should be used.

It is important to note that the words ‘registered trade mark’ or the ® symbol should only be used where the mark is registered, and it is a criminal offence to falsely represent that a mark is registered when it is not.

Like in copyright, the main benefit of using a trade mark notice is that it puts the public on notice of your rights. Furthermore, it can work to deter potential infringers and is an effective way to strengthen your company’s brand and enhance a mark’s association with its owner. It can also protect a brand against become a generic term for those goods or services, which could result in the trade mark being revoked.

What are patents?

There is no specific symbol associated with patent protection and no legal reequipment to mark products protected by a patent. However, many companies choose to mark their products as “patented” or “patent pending” to deter copying and prevent third parties arguing they were unaware of the patent when it comes to assessing damages for patent infringement.

As with trade marks, it is a criminal offence to claim that a product is protected by a patent when it is not, or to represent that a patent is pending when there hasn’t been an application, or the application has been refused or withdrawn. This makes the term “patent pending” particularly risky as rejection of the application would require a change to product labelling.