Intellectual Property Protection for Businesses: What Are Your Options?
Intellectual property protection is fundamental for ensuring businesses maintain their competitive edge. There’s nothing worse than finding out another business or individual is using your intellectual property for their own gain. Its especially difficult when your intellectual property is being misused by an employee or associate who no longer works with you.
It’s often the case that businesses want better intellectual property protection. However, many businesses don’t know what the best options are for them. Below, we have included an outline of a few options for protecting your businesses intellectual property and why they are important.
Intellectual Property Protection Option 1: Trademarks
Your corporate brand or identity is what sets you apart from competitors and is often what compels clients to choose you over other businesses. At the forefront of you image is you name, logo and slogan. These three elements are the trifecta of your image. However, they’re also commonly copied, mimicked or adapted by competing businesses. While its often said that imitation is the highest form of flattery, when it comes to business, you don’t want anyone infringing on your unique brand.
A registered trademark gives you exclusive rights to use, licence or sell your business name, logo and/or slogan. However, be wary that you need to actively use your trademark in the course of business or it may be removed. The reason for this is to prevent traders registering multiple trademarks for the sole reason of stopping others from using them.
Intellectual Property Protection Option 2: Registered Designs
Many businesses have a product that has a particular shape, configuration or pattern that gives the product a unique appearance. This distinctiveness allows a product to stand out from similar products of competitors.
Registering your design helps preserve the uniqueness of your product and prevents competitors from having a “free-ride” on your innovative design. However, its important to be aware that designs can only be registered if they are sufficiently novel. Patterns or shapes that are generic cannot be registered. Its also important to be aware that registering a design can be a lengthy and sometimes costly process, particularly if you are planning to commercialise your design.
Intellectual Property Protection Option 3: Contracts and Agreements
When it comes to your businesses’ existing intangible assets, intellectual property protection is relatively straightforward. However, things gets a bit trickier when it comes to new intellectual property created by an employee or independent contractor.
Under the Copyright Act 1968 (Cth), when an individual creates new, original work, they automatically obtain exclusive rights to it. Despite this, as general rule, an employer owns intellectual property created by an employee in the course of their employment. Regardless, its highly recommended that employers have clearly drafted employment contracts that address new intellectual property. Its important that any agreement clearly states that new creations or discoveries made in the course of employment are the exclusive property of the business.
On the other hand, independent contractors are considered to own the proprietary rights to any new intellectual property they create, even whist they are under contract. If you wish to obtain ownership of any new intellectual property created by your contractors, its fundamental that your contractor agreements clearly state this.
Contracts and agreements aren’t just important for protecting new intellectual property, they are also important for compelling employees and contractors to keep any existing intellectual property, such as trade secrets and sensitive information, completely confidential from competitors and the public. A spill of juicy confidential information could either damage your reputation or see you lose a competitive secret.
Intellectual Property Protection Option 4: Registered Names
The first important thing to note about registering a business name is that this registration doesn’t give you proprietary rights to the name. Therefore, if someone else starts using the name, you can’t make them stop by arguing that its “your name”. For this reason, it is important that you register a trademark for your business name.
So why register your name at all then? Firstly, unless your business name is your own name, or the name of the relevant partners in your partnership, then using your name without registering it breaches section 18 of the Business Name Registration Act 2011 (Cth).
Secondly, its important to ensure that your name is available and registrable before you spend any more time and energy building your corporate brand and presence.
Business names can be registered online through ASIC. Businesses must have an ABN before a business name can be registered.
Intangible assets, such as intellectual property, are notoriously undervalued by businesses, often because they aren’t recognised on the balance sheet. Despite this, intellectual property is a powerful and valuable asset when it comes to generating revenue, strengthening your position in negotiations and standing out from competitors. Therefore, any steps your business takes towards better intellectual property protection will not be wasted.