Database rights protect works such as customer lists (which may also be protected by copyright and the law of confidence), websites (in particular the way the information is presented in each web page) and other compilation of information.
It is important to remmber that an organisation, which itself creates the data that forms part of a database, will not be able to rely on the database right as a means of legal protection, unless it can show that (in addition to the investment made in creating the materials comprised in the database in the first place) it has made a separate investment in the database, which is independent of the resources used to create those data. In this case it may still be able to protect the work through copyright. So it is always important to ensure that you identify what type of intellectual property protect your work.
Designs: where an employee, in the course of employment, creates a design that qualifies for registration, the employer is entitled to apply for and subsequently own the registered design. The employer is also the first owner of any unregistered design right in designs created by its employees, in the course of their employment.
So, the points discussed for copyright in the previous article apply equally to designs.
By way of an example:
Where design rights are generated by a sole director-shareholder using the company assets (whether it is providing equipment or the company bearing all the costs), a question may arise whether the work is woned by the company or the director. It all depends on whether the company has some “irreducible minimum control” over the activities of the person in question (i.e. the director) for him to be deemed an “employee”.
Being a sole director-shareholder does not necessarily remove this element of control; as long as the director-shareholder accepts a contractual obligation to perform various duties for and on behalf of the company, such as the obligation to work a certain number of hours per week or to produce designs in return for the payments he received from the company, he is an employee pf the company, commissioned to produce designs. If the above obligations cannot be ascertained then of course the result is that the director is not an employee of the company and was not commissioned to produce the designs.
However, even in this case, we must remember that the director owes a fiduciary duty to the company and if he has used the company assets to create the designs, then it could be held that he holds the ownership of the designs on trust for the company.
Also good to remember that if the designer is not an employee, the position is not the same as for copyright. The commissioner of a design, rather than the designer, is automatically the person entitled to any subsequent design rights in the work.
Trade marks: it is unlikely that an employee will end up owning the trade mark of its employer. However, if this happens inadvertently or if the employee applies in bad faith to register a mark of its employer, then the employer may notify the Trade Marks Registry that, a pending application has been wrongfully applied for by an employee trying to appropriate the employer’s brand; in which case the application will be be rejected.
If a trade mark application has proceeded beyond the examination stage, then the employer can oppose it or make observations to the Registry, citing the same objections.
If it has been granted, either the employer or the Registrar can subsequently apply to have it invalidated. Alternatively, the employer could request that the employee assigns the trade mark to the company.
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