An intellectual property rights notice informs other parties of the rights attached to a work, and the precise details and implications of these rights. There is no legal or formal obligation to create an IP rights notice but they can be advantageous to rights holders in many ways and are often used in practice.
First and foremost the notice serves as a warning of the existence of the intellectual property rights and informs or reminds potential infringers that the goods are protected by law, potentially preventing any unlawful copying or use without permission. Although some intellectual property rights are communicated already; such as a trade mark displaying the trade mark symbol or a patent presenting the patent number, an IP rights notice declares the consequences of infringing these rights.
Secondly, the notice may help if an infringement has taken place and the rights holder wants to assert their rights against the infringer, particularly in a claim for damages. This point is identified in the Intellectual Property (Enforcement, etc.) Regulations 2006 (SI 2006/1028) in Schedule 3 (Assessment of damages) (1) “Where in an action for infringement of an intellectual property right the defendant knew, or had reasonable grounds to know, that he engaged in infringing activity, the damages awarded to the claimant shall be appropriate to the actual prejudice he suffered as a result of the infringement.” The notice could potentially aid in the allegation that the infringer had knowledge that he engaged in an infringing activity.
Additionally, a dated IP rights notice may be able to prove when the work was created and if this pre-dates any potentially infringing work.
Thirdly, the notice is beneficial when you are the rights holder of rights that do not need to be registered, as they inform any potential infringer of any rights that could not be found in an official public registry. For instance, copyright arises automatically, and section 97(1) of the Copyright Designs and Patents Act states that if a defendant had no actual knowledge, or no reason to believe that copyright subsisted in the work then the claimant will be unable to claim damages. An IP rights notice may be able to attach the defendant with evidence of reasonable knowledge of copyright within the infringed work.
Written by Saowanee Kristin, IP post- graduate law student