A trade mark is a 'badge of trade origin' i.e.,a 'sign' which distinguishes one business from another.

A trade mark 'sign' can be a name, word, logo, symbol, slogan, 3-dimensional shape, colour, sound or smell, position mark, pattern, motion, multi-media mark or hologram.

A registered trade mark allows the owner to prevent identical goods or services being offered under an identical sign (whether or not there is any risk of confusion in the mind of the public).

Where the other party's sign is not identical to the registered mark, but merely similar, or the goods and services are not identical, then the trade mark owner must prove that there is a likelihood of confusion. The owner can also argue that the other person's use of an identical/similar sign is taking unfair advantage of or causing damage to the reputation of the registered trade mark even where it is used for different goods and services.

A trade mark can be registered. The TM symbol and ® symbols are often used by brand owners to indicate that they are using the name, logo, etc. which the symbol is next to as a trade mark. The TM symbol can accompany unregistered or registered trade marks whereas the ® symbol should only accompany registered marks, i.e., this indicates that the mark has been registered with the Intellectual Property Office.

To be registered, a trade mark must be distinctive and therefore capable of distinguishing one business from another (whether inherently or because it has acquired distinctiveness over time).

Trade marks are registered for specific classes of goods and/or services, so it is possible for two different companies to register the same word as a trade mark if they are using it for different goods or services.
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Registered trade marks last for as long as they are registered. The owner of the trade mark is the registering entity. However, if there is also copyright in the trade mark (e.g. a logo) (refer to point 18), then the copyright might be owned by a person or entity distinct from the trade mark owner. This copyright will then usually last for the life of the author plus 70 years.

You can search for whether a trade mark is registered on the Intellectual Property Office website.

A third party's trade mark can be used without amounting to infringement where it is being used for the purpose of identifying or referring to products or services as those of the trade mark owner, provided such use is done in accordance with 'honest commercial practices'.

Use will not be honest if the the trade mark is used in a way that might create the impression that there is a commercial connection or other affiliation between the Insights Provider and the trade mark owner. Use of a trade mark should be in an informative rather than misleading way.

If Insight Providers do not need to use the trade mark because, for example, readers of the content would be able to ascertain the intended purpose of the products/services described without reference to the third party's trade mark, then do not use it. It will only be necessary to do so where it constitutes the only means of providing the public with comprehensive and complete information on the intended use of the product/service.

If necessary to use trade marks, you should use words, as opposed to logos e.g., SMARTKARMA as opposed to

Unregistered trade marks are protected by the law of 'passing off' (equivalent to 'unfair competition' in other jurisdictions).

Passing off can conceivably protect any name, mark or get-up concerning a business, including a brand name, a person's image, a logo, products, and product packaging.

To be protected by passing off, three elements must be established by the owner of the name, mark or get-up in issue:

No intention to misrepresent to consumers is required; it is enough to show that there has been a misrepresentation.

Copyright protects literary i.e. written, artistic, musical and theatrical works, as well as film, sound recordings and broadcasts.

Copyright will exist, for example, in a logo, table of statistics/database, photograph or video, report, flow diagram, a chart or in the text or images of an article. Copyright will also exist in web content: the words, design, graphics, data, layout and any music, video, software and images on a website, and potentially in hyperlinks if they meet the criteria of protection.

Copyright protects the expression of an idea, not the idea itself. Copyright allows the owner to prevent a third party from doing any of the following in respect of the whole or a substantial part (which is assessed qualitatively not quantitatively) of a work, either directly or indirectly:

Copyright exists automatically upon creation (i.e. it is recorded in writing or another medium) of an 'original work' without the need for registration. There is no requirement to use the © symbol or any other copyright notice on the work, although in some countries outside the UK absence of a copyright notice and/or registration of the work can limit the level of damages for infringement. If in doubt, seek specific advice.

'Original work' means the creation must be the result of independent creative effort and 'not copied'. Depending on the specific example, headlines in articles are capable of being an original literary work and qualifying for copyright protection (provided they are the result of the independent creative effort of the author and are more than just a few words).
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The owner of the copyright is the 'author' (i.e. creator), unless it was created in the course of employment, in which case it will be owned by the employer. If you commission the creation of a work, the copyright will remain with the author unless they sign an agreement transferring copyright to you.

The author will also own the 'moral rights' in the work: this entitles them to be named as the author whenever the work is reproduced in public, and to object to derogatory treatment of the work.

Derogatory treatment can include manipulating or adapting the work or reproducing the work in a different medium.

Moral rights are not property rights and cannot therefore be transferred. However, they can be waived and will not be infringed if there is consent to the act in question.

Most copyright (subject to some exceptions) lasts for the life of the author plus a further 70 years from the year of the author's death. Works produced outside of the UK may have different durations of copyright protection. If in doubt, seek specific advice.
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A third party's copyright work can be used in certain circumstances without needing to obtain the copyright owner's consent. You are entitled to use a copyright work for the purpose of:

Criticism or review: In relation to criticism or review and reporting current events, the meaning of the words is given wide interpretation. However, it is not enough for e.g., a journalist to rely on a misguided belief that they were criticising a work or reporting current affairs when they were not, otherwise this would give them an undesirable incentive to give implausible evidence as to their intentions.

Reporting current events: For reporting current events, the work must be used for reporting current events and not for editorial or other purposes. The reporting must consist of reporting to the public at large in some general sense and not the reporting to a closed circle for some commercial purposes.
​For example, there was a case where short 8 second clips of cricket matches were loaded by users to a website (with the users being required to add at least 70 characters of commentary). Whilst the Court accepted that reporting current events could be done in a non-traditional manner and could extend to 'citizen-journalism', it decided that the use made of the copyright works was not for the purposes of reporting current events, i.e. to inform the audience about a current event. Instead, the clips were presented for consumption because of their intrinsic interest and value and the publisher's objective was purely commercial and not genuinely informative.

Quotation: A quotation should be as short as it can. Do not use a whole document when limited quotations will suffice.

Fair dealing: Whether the use of the work amounts to 'fair dealing' will depend on whether a fair minded and honest person would have dealt with the copyright work in the same manner for the relevant purpose. It will always be a matter of fact, degree and impression in each case. The three most important factors to be taken into account when considering whether a copyright work has been dealt with fairly are:

Sufficient Acknowledgement: For there to be a 'sufficient acknowledgement', it means there must be an acknowledgement identifying the copyright work, by its title or other description, and the author (unless the work is published anonymously or it is not possible to ascertain the identity of the author by reasonable inquiry).

The less of the work you rely upon in the above circumstances the more likely the defence of fair dealing is to succeed.
​For example, an advertisement which featured copies of a TV listings magazine’s cover and logos did not amount to fair dealing for the purpose of criticism or review of the magazine. All that was required to make the desired criticism of the magazine was to identify the product, rather than to reproduce the logos or front covers.
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A database is a collection of independent works, data or other materials which:

Databases include websites, document management systems and electronic archives of contact information, e.g., a database of horseracing statistics.

Databases may be protected by copyright as written works. Copyright in a database will be infringed if a person copies all or a substantial part of the contents of the database (e.g. a page of a website) without the owner's permission.

A further, non-copyright database right may apply if there has been a substantial investment in obtaining, verifying or presenting the contents of the database. The database right will be infringed both

For all images and text that you intend to use and which you have not created, you must obtain appropriate permission from the creator/author or other copyright owner which covers your intended use, subject to the exceptions below.

You should also bear in mind whether the image or text contains third party brand names or logos (for more information on copyright see Section II).

The quotation, criticism or review using third party images and text with copyright protection is permitted provided it is ‘fair dealing’ with that work.

Whether use amounts to fair dealing will always be a matter of fact, degree and impression in each case. Relevant factors will be:

It must be done with sufficient acknowledgement or attribution of the copyright owner and the creator (if different), although this requirement does not apply to sound recordings, films or broadcast.

AND

The work must also have been made available to the public (i.e. it must not be an unpublished work).

Be aware that the exception relating to reporting of current events does not apply to photographs, i.e, you are not entitled to use a photograph for the purpose of reporting current events without seeking the copyright owner's consent.

Trade mark infringement, passing off and copyright infringement are all relevant legal claims to bear in mind when dealing with material that features third party names and/or logos. If practical, to avoid any risks associated with using material that features brand names and logos, permission from the brand owner should be sought or you should not use it.

Regardless of the merit of any potential legal claims, if you do not have permission from the brand owner to use the material, here are some practical considerations you should keep in mind:

Beyond practical considerations, no owner consent also warrants some technical considerations:

See previous subsections (third party images and text) and (third party names and logos) for rules regarding usage of website content generally.

It is not infringement to include a hyperlink on a website to a copyright work which is freely available on another website.

It may be copyright infringement to hyperlink to a copyright work on another website if you bypass restrictions such as a paywall.

It may be infringement to link to a copyright work that is on another website without the copyright owner's consent (this depends on knowledge that the material is not displayed with consent, which may be presumed).

You should look at the terms and conditions on a website where you are obtaining information from to see whether they have placed restrictions on how the information contained on their website can be used. Examples of such restrictions are:

If a website's terms and conditions seek to prevent or restrict an act which is permitted under copyright law, e.g. the fair dealing exception, and those terms are governed by English law (it should be stated in the terms and conditions if they are), then they cannot seek to restrict such use. Therefore, if you fall within e.g. the quotation exception under copyright law (see Section II), and the terms and conditions are governed by English law, then you can use that information. If in doubt, seek specific legal advice.

There is obviously a level of risk with using third party information to create articles and this will depend on the extent to which that information appears in the article. The more it is simply used as background information to inform what you write (with appropriate acknowledgement/attribution if applicable) and is not contained in the article, the lower the risk.

Equally, just because there are no restrictive terms and conditions on a website, this does not mean that copyright infringement may not arise.

To avoid any risk, you should seek the appropriate permission/licence from the third party to use their information/data or not use it. Often, websites require you to take out a licence with them in order to use their material. You should consider whether it would be worth doing so and ensure that the licence enables you to use any information obtained via the licence for your own commercial purposes.

DO:

DON'T:

Draft wording for a general and broad form of permission

Example wording for general forms of copyright attribution

In the absence of the appropriate permission covering the material you want to use and the nature of the proposed use, ask the following questions in order to determine whether the use exposes you to a high, medium or low risk. Consider the risk associated with the type of use of the work.

For example:

If it is high risk, consider obtaining the appropriate permission, deploy alternative materials or use the material in a different way in order to reduce your risk. With medium-low risk, whilst best practice is to obtain the appropriate permissions, you may be unlikely to face significant adverse consequences by using the material without permission. However, consider carefully whether the benefits of using the material without permission outweigh the risks and/or if any lower-risk alternatives are available.

It is very important to keep records of where you have obtained the information from and what the content of the information was which you used in or for your article. Also keep records of any permissions obtained.

It may be necessary at a later date to prove what use was made of that information if there is an allegation of e.g. copyright infringement or breach of website terms and conditions.