Intellectual property laws distinguish deliberate theft and innocent infringement. Different rules apply to different types of intellectual property.
Legislation covers both civil infringement - against patents, trade marks, designs and copyright - and criminal offences in the case of trade marks and copyright. Ignorance, ie not knowing that a work is protected, is not a defence for either copyright or design right infringement.
Copyright is only infringed if the unauthorised use involves the whole or a 'substantial part' of the copyright work. Unauthorised use usually involves copying, issuing copies, renting or lending, performing, showing, playing, communicating or adapting the copyright work.
In order to succeed with an action for infringement, it is necessary to establish that the alleged infringing party actually copied the work protected rather than arrived at their work by means of independent creative activity.
Deliberate infringement of copyright on a commercial scale may be a criminal offence. This activity is usually known as copyright piracy and is often also linked to wilful infringement of trade marks known as counterfeiting where criminal offences also exist. Piracy and counterfeiting are often also referred to as intellectual property or IP crime.
So, if the infringement of a copyright work is intentional, is on a large scale and copies of a work are being made for sale, being imported, distributed, sold or put on the internet, then it is worth informing the police or the local Trading Standards department. They can decide whether action by them, including possible prosecution, is justified.
For copyright a number of exceptions and defences apply to schools, universities and other educational establishments when using content that belongs to someone else. These are explained in more detail in the our copyright guide.
In general use of a copyright work is not an infringement if it is used fairly and with acknowledgement, for the purpose of non-commercial research, private study, illustration for instruction or criticism or review.
Infringing a patent means manufacturing, using, selling or importing a patented product or process without the patent owner's permission. The owner of a patent can take legal action against you and claim damages if you infringe their patent.
Defences to patent infringement are given under section 60(5) of the Patents Act 1977. In general it is permissible to use a patent if it is done privately and for non-commercial purposes. Also patent laws in most European countries include a “research exception” (or “research exemption”) which permits use of a patented invention for experimental purposes without infringing the rights of the holder.
It is likely that the experimental use defence is becoming increasingly important as patenting (particular in relation to biotechnology) enters the traditional domains of ‘pure’ scientific research carried out within universities.
Section 64 of the Patents Act 1977 gives third parties a right to continue acts which would otherwise infringe a patent, if those acts were begun before the priority date. The prior acts (or preparations) must have been done in "good faith". This is a common English legal term and is generally understood to exclude acts done on the basis of information originating from the inventor and performed without consent.
A design right protects the design from copying. By registering a design the proprietor obtains the exclusive right for twenty five years (provided renewal fees are paid every five years) to make, offer, put on the market, import or export the design, or stock the product for the above purposes. These rights are infringed by a third party who does any of the above with the design, for commercial gain without the permission of the rights holder.
Unlike registered design protection, design right is not an absolute form of protection. With UK unregistered design right in order to successfully pursue an alleged infringer, it is necessary to show that the features of the design in question were copied.
For a design protected by design registration however, it is merely a matter of considering the similarities between the designs irrespective of whether the alleged infringing design might have been created quite independently from reference to the alleged infringed design.
A competitor will infringe if they produce a product which uses the same design as the registered design, or which uses any design which does not produce a different overall impression on the informed user. This means that the competitor should not escape being liable for infringement merely by making trivial changes to the registered design.
There are exceptions which provide that use of a design will not generally be infringement when, for example, the use was for non- commercial purposes, for experimental purposes or for citations and teaching purposes. The limitations are that the use is fair and does not prejudice the normal exploitation of the design and that the source is acknowledged.
A registered trade mark is a property right whereby the owner is granted exclusive rights in relation the use of the trade mark. If someone uses an identical or similar trade mark for identical or similar goods or services to a trade mark already in use without the owner's consent, that person infringes the trade mark. Remedies are available to the owner to prevent an ongoing infringement, including damages for past infringements.
The Trade Mark Act 1994 specifies the following defences to trademark infringement – all of which must be done in accordance with honest practices in industrial or commercial matters:
- Use of another registered trademark - If someone else has in fact registered another trademark in relation to the same goods and services as an already existing trademark then there will be no trademark infringement
- Use of own name and address - If a company uses their name and address as a trademark then this will not be seen as trademark infringement
- Use of certain indications - If someone else uses certain indications such as the kind of goods or services, the quality and quantity of the goods or services, the value or geographical origin of the goods or services then this will not constitute an infringement of a registered trademark
- Use of a trade mark where it is necessary to indicate the intended purpose of a product or service will mean that there will be no infringement
- The use of an earlier mark - There will be no infringement where there has been use of an earlier right in the course of trade in a certain area.
Further details are available on trade mark infringement on the UK government website.
If you have not registered your trade mark you may still be able to take action against someone who uses your mark on his or her goods or services without your permission, using a "passing off" legal action. Passing off comprises three elements, goodwill, misrepresentation and damage. To be successful you must prove that:
- The mark is yours
- You have built up a reputation in the mark
- You have been harmed in some way by the other person's misrepresentation of your mark.
Further information on intellectual property crime and infringement is available on the UK government website.