Protecting your Intellectual Property
If your intellectual property is unprotected, then get to it!
It may seem daunting and time-consuming, however, protecting yourself will be worth the time and effort in the long run. The following are the intellectual property rights that you can use to protect your interests:
Copyright is an automatic right that exists in creative works. It doesn’t protect the idea itself but the way it has been represented. For example, if the idea has been recorded on video or written down, the original creator has exclusive right to that video or written work.
When dealing with copyrights, there is no actual registration procedure to follow as protection is automatic. The period of protection is now extended to the life of the author plus 70 years.
The ownership of the intellectual property that was created during the term of employment should be clearly set out in the employment contract to avoid dispute between employee and employer.
Generally, an employer will own the intellectual property created by its employees in the course of their employment.
Patents are the oldest and strongest form of intellectual property protection and give the inventor the exclusive right to commercially exploit an invention for a limited period of time. In exchange, the inventor is required to disclose to the public a full description of the invention, including the best method to use it.
A patent will not be granted for any device, substance, method or process – or a combination of these – that is not novel. That is, for something which has already been published or used.
The invention must be a ‘manner of manufacture’, useful, new and inventive, and must have been previously used in secret.
Trademarks give you the exclusive right to use your brand name or logo in respect of the goods and services you sell. Registration with IP Australia is important because trademarks are attached to the goodwill and reputation of the business.
It’s important to know that trademarks must distinguish your product not describe it – for example the word ‘apple’ could not be registered in relation to fruit, but it was able to be registered for computer products.
A design is a physical form or physical features of a manufactured product. If you have a design it must be both ‘new’ and ‘distinctive’ to be registered. A design must be registered by the Design Office of IP Australia to be effective.
Minor or insignificant changes to a design are irrelevant if the overall impression remains one of substantial or significant similarity.
A design is useful when you have a new or original design for the visual presentation of commercial products. Design is important in areas such as computer accessories to cars, spare parts to kitchen utensils.
Intellectual Property Checklist
Here are some easy to follow checklist’s to help you manage your Intellectual Property.
- What IP assets do you own?
- Identify and classify your IP portfolio. This may include confidential information and trade secrets, trade name(s), trademark(s), domain names, industrial designs, copyright and sometimes utility models and patents for inventions.
- What other intangible assets do you have? In this context, also consider:
- License and distribution agreements;
- Publishing rights, covenants not to compete;
- Information databases;
- Computer systems software;
- Marketing profile;
- Management expertise;
- Distribution network;
- Technical skills;
- Client lists
- Business processes that are unique to your business; and
- Business contacts.
- How do you plan to protect your IP assets?
- If you commercialise your IP assets (in-house or with a partner), do you have arrangements securing the ownership or co-ownership of your IP assets?
- If you outsource a part of your business activities, do you have contracts in place that ensure your IP rights over the outsourced work and prohibit others from taking advantage of your product without your prior agreement?
- How easy or difficult is it for others to properly acquire or duplicate your secret business information?
- What measures are taken to guard the secrecy of your confidential business information?
- Do you have arrangements maintaining the confidentiality of your secret business information? Have you ensured that confidential business information and trade secrets are not available or lost by display on or through your web site?
- Have you included confidentiality or nondisclosure clauses and non-compete clauses in the employment agreements with your key employees and business partners?
If you would like to know more about all areas of Intellectual Property contact Butlers Business and Law on (02)4929 7002 or fill out an enquiry form out on our website. Our solicitors are experienced in intellectual property matters, and we can help you identify which areas of your business need to be protected and how to go about it.
Let us help you protect the long-term viability of your business.