Friday Support: IP – Is what I have original and distinctive?

The second in a series of 10 blogs, helping you find your own answers to 10 key questions about your intellectual property, or IP.

There’s one key test your IP and other intangible assets must pass if they are to have significant value: are they unique?

Distinctiveness and originality are particularly important if you want to benefit from legal IP protection. In this article we have focused on tests of inventiveness as these apply to patents, trade marks, designs and copyright.

Let’s suppose that you have a wizzy new invention you want to patent. You don’t have to have created a whole new product (for example, it is perfectly possible to patent a new kind of lid or fastening). However, your innovation does have to be genuinely new, and not obvious to someone with technical knowledge of your subject.

To find out what has been done before, you will need to search the official records. There are over 60 million patents on the Espacenet European database which anyone can access. If you find things that are similar, you will need to show how your innovation improves on them. Be warned: the data itself is complex, so even if it seems you are ‘in the clear’, it is wise to get an IP professional to check before applying.

You can also use official databases to see whether you can register a trade mark. At the UK IPO website ( you can search all
UK and European marks. Here, the rules are a little different: because marks are divided into classes according to their intended use, it is sometimes possible to get protection for a name even if it is already registered, provided your purpose is novel.

However, a trade mark is not allowed to be purely descriptive (‘orange’ can be registered for telecommunications, but not for orange fruit).  Trade marks also cannot be ‘confusingly similar’ to an existing trade mark in the same class, so you couldn’t call yourself ‘Microsift’ and sell software.

How about a design?

To be registrable, there must a novel visual aspect to your invention (so again, it could be part of a product rather than the whole thing). However, in this instance, trying to search official databases is quite difficult due to the complex classification systems used, unless you are looking to check out designs belonging to a particular company. Far better to research the market in question and ensure that you can’t find anything that looks the same – then apply.

Which brings us to copyright.

With this area of IP, it is particularly important to bear in mind that the law protects the expression of an idea, not the idea itself. Copyright ownership does not prevent two people independently arriving at very similar conclusions; it is about protecting content creators and distributors against intentional copying.

If you know that you haven’t copied a “substantive part” of what someone else has already created, then you will own copyright and be in a
position to enforce it. The trick, when so much content is now delivered in digital form, is to know whether you have been copied at all.

Visit to profile and value your IP and intangibles.

Others in the series:

De-mystifying IP

Unlocking the hidden value of apps

IP - What have I got?


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