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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.
Damages are a form of monetary compensation awarded by a court in a civil action to an individual or other entity that has been financially injured as a result of the wrongful conduct of another party ( the “defendant“).
When awarding damages a court will attempt to measure in financial terms the extent of harm a plaintiff has suffered at the hands of a defendant’s actions. Damages are distinguishable from costs, which are the expenses incurred as a result of the court hearing an action and which the court may order the losing party to pay.
The purpose of damages is to restore an injured party to the position the party was in before they were harmed by the actions of the opposing party. Consequently, damages are generally regarded as being remedial (compensatory) rather than preventive or punitive. In serious cases however, additional punitive damages may be awarded by a court for particular types of wrongful conduct and for which the court would decide to penalise or otherwise make an example of a defendant. One further type of damage award is nominal damages, where a plaintiff who has suffered no substantial loss or injury but has nevertheless experienced an invasion of rights is awarded a token sum.
In order to recover damages from a defendant a plaintiff must satisfy the court that its financial injury suffered is one that is recognised by local law as warranting redress. Further, the plaintiff must show that actual harm has been sustained.
A database right is a form of intellectual property introduced by The Copyright and Rights in Databases Regulations 1997, with effect from 1 January 1998. This Act made amendments to the existing Copyright, Designs and Patents Act 1988 and extended copyright protection to databases, creating “database rights”.
Unlike copyright, there is no requirement for a database to have originality in order to qualify as a database right. Instead, a database right will automatically subsist on the condition there has been a “substantial investment in obtaining, verifying or presenting the contents” of the database. Despite having its own protection under The Copyright and Rights in Databases Regulations 1997, a database might also still qualify for protection as a literary work in accordance with UK copyright law.
A database right extends for 15 years from the end of the calendar year in which the database is completed. If the database is made available to the public before the end of that period, the duration will expire 15 years from the end of the calendar year in which the database was first made available to the public.
During its period of protection, an owner’s database right will be infringed by another party if that party, without the owner’s consent, “extracts or re-uses all or a substantial part of the contents of the database“, which may be done either all at once or by “repeated extractions” of “insubstantial” parts. In this case “substantial” is deemed to mean “substantial in terms of quantity or quality or a combination of both“.
Defamation is defined as a verbal or written expression giving a view or statement about an individual which, if proved to be false, is deemed to harm the reputation of the individual to whom it has been directed.
When considering whether defamation has taken place, consideration must be given to the effect a defamatory statement has upon right-thinking members of society in general and how their thoughts towards the individual are affected.
Defamation is deemed to have taken place if the right-thinking members of society are given cause to think about the affected person in any of the following ways once they have heard or read the statement:
A defendant is the name given to a person or entity against whom a civil action is brought by a “plaintiff” (or “claimant”) that seeks civil relief. In intellectual property cases a defendant is the party that is accused of infringing the patent, trade mark or design belonging to the plaintiff. If the court decides the defendant is held to infringe the plaintiff’s property then an order for damages will be issued which forces the defendant to compensate the plaintiff for their loss. A losing defendant would also have to bear a significant portion of the court costs.
In criminal matters a defendant will face an action brought not by a plaintiff but most often by a public prosecutor. On occasion a private criminal prosecution can be brought against the defendant.
In the UK, the term “design right” usually refers to UK unregistered design right, but it can also refer to a registered UK registered design right as well as (currently) European registered and unregistered design rights, the latter for the time being at least include the UK.
Design right essentially protects the shape or configuration of a three-dimensional object, rather than methods or principles of the object’s construction. It will subsist if the design is recorded in permanent form, such as for example, if the design is reproduced on paper or if an article is made according to that design. Documents detailing a design are also capable of qualifying for protection as artistic works under copyright law.
Design right will not apply if a design is not novel or original. To qualify as original the design in question must have individual character and not be commonplace in its related field.
A registered design right provides its owner with an exclusive right of up to 25 years duration. Unregistered design right is more akin to copyright in that it attaches automatically when a new design is created. In the UK unregistered design right lasts for 10 years after an object bearing the design is first sold or 15 years after it was created – whichever is the earliest. Under EU law, an EU unregistered design right lasts for three years from the date on which the design is first made available to the public in the EU.
The term “disclosure” relates to a revelation of facts or the act or process of making known something that was previously unknown. In the field of copyright, “disclosure” could be construed as making a work accessible to the public for the first time.
Since works can be published by virtue of “non-copy” acts other than by actual publication there exist other forms of disclosure. Examples include public performance, as well as broadcasting to the public by cable (wire) or satellite. Recognition of such a disclosed right is not an obligation under international copyright convention. The Berne Convention for the Protection of Literary and Artistic Works (1971) refers to the use of publicly-disclosed works in the context of exceptions and that an author of a work has the right to disclose his work to the world. Under certain national laws, the “right of disclosure” is a moral right.
A domain name is used to identify a particular party’s website. The website is accessed using an IP address, which is a coded series of numbers. The domain name converts this IP address into a text-based version, making it easier for people to use and remember. For example the actual IP address for the SH&P website is “http://188.8.131.52” – translated more easily as “http://www.shandp.com”.
Domain names are an important intellectual property consideration, since they can be used to distinguish the goods/services of one party from those of others on the Internet. Many brand owners seek to to register the domain name that reflects their branding, so the availability of a domain name when selecting a new brand is a very important consideration. Ideally a party should select a domain name that corresponds to their name, helping consumers to easily find them online.
A domain name can be generic (e.g. .com), give a geographic indication (e.g. .uk) or be a particular niche (e.g. .media).
The right to use a domain name is delegated by “Domain Name Registrars”. A Registrar usually charges an annual fee for the service of delegating a domain name. In return, the party will have an exclusive right to use the domain name (but not outright ownership).
This is a term usually used in relation to copyright protection. Dramatic works are one of the types of original works protected by copyright. It usually requires action by a person or persons, with or without words or music, which can be performed before an audience. Stage plays and film productions are common forms of dramatic works.
In order to be protected by copyright, a dramatic work needs to be recorded or fixated on a medium and requires originality. For a work to be original, it needs to be its author’s own creation rather than the copy of someone else’s work or dictated by technical functions.