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IP A-Z

Like most areas of law, Intellectual Property can appear daunting and complex. There are a great many practice areas, subjects and procedures. The SH&P “A-Z” Intellectual Property glossary is a free and easy to use glossary of legal terms commonly used and associated with IP. We hope that it will help you better understand this topic. All of the entries include contact details for SH&P expert advisers. Alternatively, you can request a free, no obligation, IP Consultation and Review here if you require more information or have a particular issue you would like us to help you with.

Bona vacantia (“goods without an owner”) is a legal concept of goods which are in limbo or which belong to nobody. In the UK if property is deemed ownerless then it passes to the Crown. By definition these goods can include assets of dissolved companies and other unincorporated bodies which were not removed prior to dissolution, as well as assets from the estates of the deceased without heirs or inheritors or where a will has not been made. The assets of dissolved companies pass automatically to the Crown.

In England & Wales the Bona Vacantia Division of the Government Legal Department (formerly the Treasury Solicitor’s Department) is responsible on behalf of the Crown for dealing with bona vacantia assets. Assets based in Cornwall may pass to the Duchy of Cornwall. In Scotland, the Queen’s and Lord Treasurer’s Remembrancer deals with bona vacantia assets.

Given the above, it is important to remember to remove intellectual property assets from a corporate or unincorporated body prior to winding up. Whilst bona vacantia property can be assigned from the Crown after the event, the Crown is not obliged to sell it and may sell it for full market value; the directors of a company who forget to remove trade marks, patents and designs from their company prior to its winding up may find themselves having to pay a substantial sum to recover “their” property. Further, the Crown gives no form of title guarantee when disposing of the property; the risk of buying bona vacantia property resides with the purchaser. This may be relevant, for example, when a third party has acquired a conflicting interest in the registered trade mark and in ignorance of the bona vacantia transfer. See Section 25 (3) of the UK’s Trade Marks Act 1994.

It may be possible to restore a company post dissolution in order to avoid a bona vacantia situation.

  • Peter Cornford

    Brands & Trade Marks, Product Design & Copyright

    Peter has worked as a trade mark lawyer for almost 30 years. His experience…
Branding can be traced all the way back to the Vikings. The origin of the word “brand” comes from old Viking and means “fire”. The Vikings marked their animal property by physically branding the animals with a red hot iron, searing an indelible stamp on the animals’ bodies. It represented ownership. A distinctive “brand” on a cow’s body by a Viking would proclaim to outsiders that “this is my cow”.  Nowadays we are much more humane of course in that we don’t use a red hot iron but it is common to see sheep, for example, “branded” by a patch marked with coloured dye on their woolly backs.

What hasn’t changed is that brands are all about “ownership”. A product with a brand seeks out its own place in the hearts and minds of a customer.

A “brand” is everything a trade mark is. It is also the style that you convey to the customer about your products. It is the attitude of your products. It is the way you talk to your customers. It is the overall impression you convey to the customers and how they see your product or products. It is almost a lifestyle.

Unique design, sign, symbol, words, or a combination of these, employed in creating an image that identifies a product and differentiates it from its competitors. Over time, this image becomes associated with a level of credibility, quality, and satisfaction in the consumer’s mind (see positioning). Thus brands help harried consumers in crowded and complex marketplace, by standing for certain benefits and value. Legal name for a brand is trademark and, when it identifies or represents a firm, it is called a brand name. See also corporate identity.

Read more: http://www.businessdictionary.com/definition/brand.html

 

  • Ann Lynch

    Brands & Trade Marks

    Ann joined the firm in 2014 bringing with her almost 20 years’ experience in…
  • David Powell

    Brands & Trade Marks, Domain Names, Websites & E-commerce

    David is a Trade Mark Attorney and a partner of SH&P, which he joined…
  • Jon Welfoot

    Brands & Trade Marks

    Jon joined the firm in 2000. He is an experienced Trade Mark Attorney and…
  • Jonathan Sutton

    Brands & Trade Marks

    Jon has been with SH&P since 1996. Prior to joining SH&P Jon worked as…
  • Julie Gonard

    Brands & Trade Marks

    Julie joined SH&P in 2016, shortly after qualifying with distinction as a UK and…
  • Peter Cornford

    Brands & Trade Marks, Product Design & Copyright

    Peter has worked as a trade mark lawyer for almost 30 years. His experience…
  • Robin Webster

    Brands & Trade Marks, Domain Names, Websites & E-commerce

    After graduating with a degree in Mechanical Engineering from Cardiff University in 1992, Robin…

A contract is an agreement, whether written or spoken, which is intended to be enforceable at law.  So long as the agreement contains the following it will be regarded as valid at law:

  1. An offer and an acceptance
  2. A statement that the parties intend to create a binding relationship
  3. Consideration in some form in respect of the promise made
  4. Legally capable parties
  5. Genuine consent of the parties
  6. That the agreement is legal

A breach occurs when one or more of the parties does not honour the commitment agreed in the relationship.

Examples of breaches could be:

  • Failure to perform on time
  • Failure to perform sufficiently
  • Failure to perform as agreed
  • Failure to perform at all
  • Failure to pay enough, on time, or at all

A breach can be minor, material, fundamental or anticipatory.

  • Minor: The contract has been performed substantially but a corner has been cut or performance has fallen short of what has been promised. The party disadvantaged by the minor breach can sue for actual damages only.
  • Material: The breach is substantive and to the extent that permits the party disadvantaged by the breach to sue for damages or alternatively compel performance.
  • Fundamental: The breach is so significant that the party aggrieved can terminate the contract and sue for damages.
  • Anticipatory: The breach is inevitable by reason of the contracting party not being able to deliver on time, or sufficiently. The party aggrieved may sue for damages without waiting for the breach to occur.

Examples of breaches of contracts involving intellectual property would be:

  • A trade mark licensee uses a trade mark format other than that agreed
  • A patent licensee fails to pay sufficient royalties
  • The owner of a registered trade mark fails to pay a renewal fee, thereby exposing a licensee to infringement proceedings
  • Ann Lynch

    Brands & Trade Marks

    Ann joined the firm in 2014 bringing with her almost 20 years’ experience in…
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  • Joanne Heaton

    Inventions & Innovations

    Jo joined the firm as a qualified attorney at the beginning of 2000. She…
  • Ceili Williams

    Inventions & Innovations, Product Design & Copyright

    Ceili enjoys the complexities of the role of a patent attorney: getting to grips…
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  • David Powell

    Brands & Trade Marks, Domain Names, Websites & E-commerce

    David is a Trade Mark Attorney and a partner of SH&P, which he joined…
  • Jon Welfoot

    Brands & Trade Marks

    Jon joined the firm in 2000. He is an experienced Trade Mark Attorney and…
  • Jonathan Sutton

    Brands & Trade Marks

    Jon has been with SH&P since 1996. Prior to joining SH&P Jon worked as…
  • Julie Gonard

    Brands & Trade Marks

    Julie joined SH&P in 2016, shortly after qualifying with distinction as a UK and…
  • Peter Cornford

    Brands & Trade Marks, Product Design & Copyright

    Peter has worked as a trade mark lawyer for almost 30 years. His experience…
  • Robin Webster

    Brands & Trade Marks, Domain Names, Websites & E-commerce

    After graduating with a degree in Mechanical Engineering from Cardiff University in 1992, Robin…