Getting intellectual property right

There were newspaper reports yesterday of Damien O’Regan’s proceedings against Andy Quirke and RTÉ arising out of the Damo character played by the former and broadcast by the latter (O’Regan v. Quirke & RTÉ 2013/9674P).

Damo
Damo was not happy to meet the summons server.

The Irish Times and the Irish Independent  report in almost identical terms that Mr O’Regan is

suing … for alleged copyright infringement … [and that] he claims he registered the name ‘Damo’ with the Irish Patents Office.

Mr O’Regan told the court that the use of the name Damo is a clear breach of his trademark and said he had not given his consent for its use by Mr Quirke.

It may well be that Mr O’Regan will be suing on the basis of copyright and trade mark rights, but that seems unlikely. Mr O’Regan holds a registered trade mark for the word DAMO and is suing Mr Quirke and RTÉ for allegedly infringing it. Kate Gorey points out that this may be the first “character mark” case before the Irish courts.

Copyright and trade marks are not the same thing. Confusion about the types of intellectual property that exist and the rights they give is commonplace. We aspire to be a “knowledge economy”. Any economy like ours requires the creation of intellectual property to survive in the contemporary market. So the above story is a good excuse to briefly outline the types of intellectual property that exist.

What intellectual property rights are there?

The following is an attempt to summarise the different rights available so that they can be distinguished. Not all are strictly intellectual property rights but they are often considered together. The main rights are copyright, trade marks and patents. In very simplistic terms: copyright protects things like books and music, trade marks protect brands and patents protect inventions.

  • Copyright: a property right in a work (generally creative works, but it can include compilations of works and databases). In Irish law copyright exists once the work is created. It does not apply to ideas, only the implementation of them. It does not have to be registered. When a work was created is a question of fact but there is no specified way of establishing that. For example, it is not required that you post a song to yourself in order to copyright it, but doing so might help you establish the date of creation. Copyright is governed by the Copyright and Related Rights Acts 2000 to 2007.

FAQ on the Irish law of copyright and designs by FR Kelly

  • Trade mark: a sign capable of being represented graphically (including in text) which can distinguish goods or services of one undertaking from those of other undertakings. Trade marks are registered with the Irish Patents Office (community trade marks, which also have force in Ireland, are registered with the strangely-titled Office for Harmonization in the Internal Market). There are no private trade mark registries. Trade marks are governed by the Trade Marks Act 1996.

FAQ on the Irish law of trade marks by FR Kelly

  • Patent: an invention which is new, involves an inventive step and is susceptible to industrial application. Irish patents are registered with the Irish Patents Office and are governed by the Patents Acts 1992 to 2012.

FAQ on the Irish law of patents by FR Kelly

  • Design rights, industrial designs and database rights: specific forms of intellectual property right. They are comparatively complicated and what is protected can overlap with the other rights. For more see the FR Kelly FAQ on copyright and designs, the IPO on designs or OHIM on designs.
  • Passing off: a tort of passing off goods or services as those of another in a manner calculated to deceive. It is not governed by legislation and does not have the same remedies or enforcement procedures as, for example, copyright, trade marks and patents. It may be thought of as a form of protection for unregistered trade marks (which don’t strictly exist in Ireland).
  • Registered business name: these are not a form of intellectual property but are often mistaken to be one. I wrote about them here.
  • Domain name: these are registered internet addresses. Also not strictly a form of intellectual property but are lumped in with it.

Don’t be fooled by inauthentic registrars

A number of scams have operated in the past decade or so whereby businesses receive letters or emails offering to register some form of intellectual property or protect a right. There are genuine professional service providers like trade mark and patent agents who advise on protecting and registering intellectual property. They can prepare and lodge registration applications and deal with them until they are granted. But they do not, themselves, act as the registrar.

The copyrightyourname.com site appear to offer, for a substantial fee, some form of registration service but the site is highly confused. The website operators cannot offer the service advertised and must know that they cannot offer it. You cannot register copyright in Ireland. You can register trade marks, but only with the Irish Patents Office or OHIM. A private entity like copyrightyourname.com cannot carry out that function.

What rights the registration of a name as a trade mark provides is a more complicated question. You can, by all means, join copyrightyourname.com and part with your money, but you will not be getting a trade mark in return and you will not be getting any additional copyright protection.

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