"Dangerous" Intellectual Property Myths

The Cabbit, or Rabbit-Cat:
myth or reality?

The IPKat is grateful to his sometime student, scholar and gentleman Tim Pinto (Taylor Wessing) for the following, which he penned together with well-known European trade mark cowboy, scholar and gentleman Roland Mallinson:

"Most people these days have heard of intellectual property (or at least copyright). While the general public's awareness of IP is probably greater now than ever before, there seem to be numerous myths circulating in this field. The myths generally start "It's OK to copy a design/copyright work if…" and then many variations exist. These include "…if you only copy 10%" and "…if you acknowledge the author of the original work."

Such myths, some even amusing, can be dangerous. They can lead to serious negative consequences for companies if believed and acted on. Might your company's designer or marketing executive be merrily copying the work of others having consciously made 3 (or 7) changes to "avoid" infringement? If so, the company could be facing injunctions and expensive damages claims.

The IP team at Taylor Wessing has been collecting IP myths. So far, they have gathered over 25 examples but there are probably many more doing the rounds. Their idea is to expose the myths as the traps for the unwary that they undoubtedly are and thereby promote a better understanding of IP.

The myths demonstrate a fundamental misunderstanding of intellectual property law. The legal test for copyright infringement, for example, is whether the defendant has copied all or a substantial part of the earlier work (e.g. a painting or book). In design law, the test is whether the design in question 'does not create on the informed user a different overall impression.' Therefore, changing three or seven design features might prevent infringement but it depends on what and how much has been copied from the original. Take the design of a coat. Merely changing the style and colour of the buttons (2 changes), the angle and width of the lapels (2 more) and the fabric, buckle and number of holes of the belt (3 changes) amounts to seven, but the new coat may still look the same as the old one to most people.

In the second example, merely acknowledging the source of an earlier work is not enough to avoid copyright infringement. There must also be "fair dealing" with the earlier work and this dealing must be for the purpose of, for instance, criticism or review or reporting current events.

There is a practical message behind the 'acknowledging the source myth'. Many copyright owners essentially want recognition, and it is the absence of attribution, which sometimes causes them to make a legal claim. Other copyright myths are that is necessarily safe to copy some text, a piece of music or a design "...if it's in the public domain (i.e. I can get it easily from the internet)", "…if you don't charge others for the copy you've made", "…if you're only copying no more than 2 bars of music" or "…if you are 2 (or 5) notes away from the original music." The one the lawyers probably hear most often is, "Everyone else is doing it, so it must be OK for me to do it too."

There are trade mark myths too. A common one is that registering a company name or a domain name is the same as having a registered trade mark [but a good deal cheaper, adds Merpel!]. However, company and domain names give no IP rights at all. Having said that, cybersquatters exploit the hassle and cost for companies of trying to obtain a domain or company name using their brand. The cybersquatter persuades the company it is cheaper to pay them than to pay their lawyers – which sadly may well be true. But, as with pirates and kidnappers, paying off cybersquatters for an easy life just encourages them to carry on.

A very common, but understandable, misconception is that the ™ sign means that a trade mark is registered. Only the ® symbol means that, and it is a criminal offence to use the ® symbol if there is no registration. Another trade mark myth which we heard was that a company could avoid infringement by moving two Pantone® colour shades away from a coloured trade mark or design. For readers who have not seen a Pantone® colour-chart, two shades is not much of a change. It is unlikely to turn a confusingly similar logo into one which does not cause a likelihood of confusion.

On the patent side, there is a myth that owning a patent gives a right to exploit the invention. A patent, like other intellectual property rights, only gives its owner a right to exclude others from using the invention. Despite owning a patent, the "patentee" may infringe someone else's patent by exploiting his or her invention and, if so, would need to obtain a licence.

How some of these myths develop is a mystery in itself. A difficulty with the test for IP infringement is that it is not an exact science. People look for generalisations in order to give a measure of certainty and comfort. This can lead to the myths. In some cases, a lawyer may have advised on a particular set of facts in the past and someone decided to make a general rule from it. It is only natural that people want clear guidelines, which give certainty. However, most of the infringement myths provide a rigid rule of thumb, which is too lax and may get companies into hot water if believed. It can be a classic case of a little knowledge being a dangerous thing".

Timothy and Roland Mallinson are looking for more of your favourite myths.  If there are any that you'd like to share with them, you can email them here.  They promise that a selection of myths will appear on Taylor Wessing's website later this year -- but the IPKat (whose favourite myth is that if you win in court, the other side has to pay your costs) hopes to hack into their system for a sneak preview that he can share with his readers ...

Popular myths here, here and here
Mythical cats here