Intellectual property (IP) is an original creation of the mind or intellect such as inventions, words, phrases, symbols, and designs, which can be legally owned. Importantly, such creations can have a significant commercial value for your business and give you an edge over your competitors.
Most businesses have some kind of IP they need to protect for long term commercial success. Whether it is through a trade mark, patent, design, copyright or trade secret, you should know your options and start protecting your IP from its creation.
What follows is an overview of the major items to consider in respect of protection of your business IP.
Review your IP and forms of its protection
You may have plenty of IP you use for your business. From the logo on your letter-head to an innovative new method, there will be items that make you stand out and provide you with a competitive advantage. IP represents intangible assets of your business, the value of which can grow significantly with the growth of your business. In the first instance, you should identify your business IP and understand how you can protect it.
In Australia, there are different types of IP rights, each of which is governed by specific rules and legislation. IP law allows for legal protection of your IP through a trade mark, patent, design, copyright, circuit layout, and plant breeder’s right. For example, a patent will protect your invention, a design will protect its look, and a trade mark will protect your brand name and logo. You should also consider the use and access to your confidential information and trade secrets as a way to protect your IP.
In most instances, you have to go through a registration process and have your IP formally registered in order to protect it. This includes registration of trade marks, patents, designs and plant breeder’s rights. However, such IP as copyrights and circuit layout rights are automatically protected from the time of their creation.
1.1 Trade Marks
A letter, number, word, phrase, sound, smell, colour, shape, logo, picture, aspect of packaging or any combination of these can be your business’s trade mark. A trade mark is used to distinguish goods and services of your business from those of the other businesses, which are often your potential or current competitors. If you register a trade mark for your business, it will have the exclusive right to use, license or sell it in the jurisdictions for which it is registered.
A device, substance, method or process which is new, inventive and useful can be protected by a patent granted to an innovator. You have to apply for registration of your innovation and grant of a patent.
The appearance of a product, including for example a new packaging with branding and logo, that gives the product a unique visual style can be protected by your business’s design rights to it. You have to apply for registration of your design to have it protected. A registered design will give your business exclusive rights to commercially use, licence or sell it in the jurisdiction of its registration.
Copyrights cover several rights that the creators of works of art, literature, music, films, broadcasts and computer programs have from the time of creation of their works. Copyrights protect original expressions of ideas, for example an original song and lyrics or source code of a software application, but not ideas themselves. Your business has the rights to reproduce its copyrighted work, license it to others, perform the work and communicate it to the public, publish the work and make its adaptations.
To be protected, your business’s copyrights do not require any registration. In this respect, keeping records of your copyrighted materials, including the time of their creation, and communicating to the public that particular works are your copyrights are crucial for their protection and need to be adopted as part of your business processes.
1.5 Circuit layout rights
Circuit layout rights are similar to copyrights. However, they represent a separate form of protection for your business IP. Circuit layout rights protect the layout plans or designs of electronic components in an integrated circuit, computer chips, or semi-conductors which are used in computers and in the equipment with electronic components, such as digital household items, medical devices and equipment.
As the owner of the original circuit layout, your business can have exclusive rights to copy the layout, make integrated circuits for the layout, and commercialise it.
1.6 Plant breeder’s rights
Plant breeder’s rights represent exclusive commercial rights to use a new and distinguishable plant variety. As the owner of the plant breeder’s rights, only your business can market the new plants and their reproductive materials, control their reproduction, sell, distribute and license the new variety protected by such rights.
For your business to register a new plant, it will need to demonstrate that it is different from others, always the same and will reproduce as itself. You will also need to demonstrate by a comparative trial that your variety is different from commonly known other varieties.
Keep your IP confidential
You should keep your business ideas, which are likely to crystallise into your valuable IP, confidential until such time when they are protected. If you are sharing your business ideas with others, consider having an appropriate confidentiality agreement in place to prevent their disclosure without your permission.
If you plan to apply for registration of a design or patent for your business, you need to maintain secrecy until you have filed your application for registration. Commercial use or even a display of the invention before your patent application is filed, may prevent your business from receiving a patent.
Furthermore, you may decide that the best way to protect your IP is to keep it as a secret rather than applying for its registration and having to disclose its details. This way of protection is known as a trade secret. For example, the drink formula for Coca-Cola has remained a trade secret for generations without disclosure of the recipe. Trade secrets are the best to rely on where the product or process is difficult to replicate and its knowledge can be protected by confidentiality agreements.
Do your research
You should research the current and potential market of your business and understand who your potential consumers, licensees, distributors and investors are. By doing this, you will be able to understand what IP makes your business competitive, forecast your business’s costs and justify the value of your IP.
You can also search the patent, trade mark and design registers to check whether your IP is new and make sure you are not breaching IP rights of the others.
Develop a plan to commercialise your business IP
There are different options that may be available to your business to commercialise its IP. They include selling your IP to another business which is currently in a better position to commercialise it, licensing your IP to the end-user and distributors on agreed terms and conditions, and your business manufacturing products and providing services itself. In any case, you should consider all available options, their advantages and disadvantages and have a solid business plan of your business IP commercialisation and protection.
Pavuk Legal can assist you with developing a successful IP strategy for your business; conduct IP due diligence, drafting and lodgement of trademark applications with IP Australia, drafting confidentiality agreement for employees, contractors, suppliers and other third parties, and general IP advice for your business.
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