There are many forms of intellectual property. This article looks at some of the common ones.
1. Trade mark of name/ logo
In addition to a name, a logo can also be protected by registering it as a trademark. This is called a device mark or figurative mark. For instance if the name of the mascot is depicted in a special font of several bright colours or a drawing of the mascot is used in the logo, this is a device mark. The difference between a word mark and a device mark is that a word mark protects the name against signs with a similar wording. The device mark protects against a similar impression of a logo.
If a company’s name is also printed on (the package of) the mascot (and is thus also used to distinguish its products from products of other companies), this name can also be registered as a trademark. This is not necessarily the same name as the name of the mascot.
Trademark rights can in principle provide an everlasting protection, as long as two requirements are fulfilled. Firstly, every 10 years registration fees must be paid to renew the mark. Secondly, the trademark must continue to meet all of the requirements. For example, the trademark must be used and not become a generic name. If a trademark is not used normally for five consecutive years, a third party can request the cancellation of that trademark.
2. Copyright (in artistic works)
Provided the person designing and creating the mascot has assigned all intellectual property to you in the agreement you have between you and them, then as the owner, you will naturally have copyright ownership of e.g. text that may be documented if the mascot comes with a story as well as text on packaging which may carry a unique message. In the UK, very few 3D articles have copyright qualify as sufficiently artistic to be protectable by copyright. For the time being, therefore, you cannot rely on UK copyright to protect the mascot itself, but must instead look to design rights.
3. Design Rights
This will protect 2-dimensional and 3-dimensional shapes of the mascot itself and the manual and packaging (if any) but unlike copyright, only the outside appearance is protected and text/ content is not included in this. The appearance should be new and it should have its own characteristics. That means that no identical (or highly similar) mascot/ toy should have been made public earlier.
The application for registration has to be sent to the trademark office within twelve months after it was first shown to the public or the possibility to register the design is limited or extinguished as it will not be deemed to be new anymore. A registered design right is 25 years, renewable, 5 yearly.
4. UK Unregistered Design Right
This is an automatic design right with protection of 3 yrs in the EU. A UK unregistered design can be protected for 15 years from the year the design was recorded, or 10 years from the year the article was first sold. This is shorter than a registered design right and will not protect surface decoration.
Again the designer is the one entitled to the design rights so you need to ensure that these are assigned to you.
If someone copies the design of the mascot, it is important to know whether the design is registered or not. A registered design right gives a broader scope of protection than an unregistered design right. While unregistered rights are often difficult to prove, the registered design right is the proof itself. In the event of an unregistered design, the right holder can act against the copying of that design by third parties. When it concerns a registered design, the right holder cannot only prevent third parties from deliberate copying of the design, but also from the independent development of a similar design.
