How to Protect Your IP

19th June 2017

Guest Writer – Daniel Smith

Intellectual Property (IP) is a term used to describe various exclusive proprietary rights to creations of  the mind. IP includes copyright, trade marks, patents, trade secrets, and know-how.

In most cases, to protect your IP, you need to register it. Different IP rights vary in the protection that is granted.  An IP owner can take steps to enforce their rights against people who are violating them.

Protecting IP
Intellectual Property (IP) is a vital asset that adds value through brand identity and consumer recognition. By developing an IP strategy, you can integrate IP protection into your business strategy and integrate IP with your business’ competitive strengths. With an IP strategy, you not only protect valuable assets but also safeguard your business’ products.

Copyright protects the creative expression of ideas in writing, music, visual images, moving images, and computer programs.  It can also protect other things, like databases and broadcasts.  It provides the exclusive rights to use, copy, license, perform, and modify the protected creative work.  A copyright notice states who created the work and when.

A trademark is a sign used to distinguish one trader’s goods and services from those of other traders.  A trademark can be a letter, number, word, business name, phrase, sound, smell, shape, logo, picture and aspect of packaging.  A registered trademark is legally enforceable. It provides you with exclusive rights to commercially use, license, or sell your trademark, in connection with the goods and services for which it is registered.  An unregistered trademark has some protection from laws on misleading and deceptive conduct, and passing off.

A patent is an exclusive government granted licence to make, use, or sell any device, substance, method or process which is new, inventive, and useful.  It is a good idea to protect your business as other companies can’t make, use or sell the same device, substance or method.

Confidential Information
‘Confidential information’ may include technical information, inventions, patents, trade secrets, proprietary ideas, potential new products and services, research and development information, financial information, and customer data.

Key Considerations
It is vital to record your idea in detail. You can protect your intellectual property by taking measures to discourage misuse.  By recording your idea in detail by having detailed drawings, descriptions, plans and records, you can prove your ownership over your intellectual property if any disputes arise.

Keep track of your IP in a register, along with who has access to it and under what conditions.  This will help you to manage your IP rights and enforce them if you need to.

IP Australia handles all IP registrations in Australia.  The Institute of Patent and Trademark Attorneys of Australia has a list of patent and trade mark attorneys that can assist in registering your trade mark.

Securing IP protection can be costly and time-consuming.  Engaging an IP attorney or lawyer to prepare and submit your application ensures you cover all the application requirements.

Protection of Intellectual Property
In most cases, the first step in IP protection strategy is registering your IP.  You can register your patents, trade marks, designs and plant breeders rights with IP Australia.  Note that registration with IP Australia provides coverage only in Australia.

Employees and Contractors
Employees and contractors will likely contribute to the creation of your business’ IP. It is crucial to clarify IP ownership and to protect IP in your contractors and employees agreements.  The key clauses you should include are:

Assignment: all IP created for the business is assigned to the business;

Non-compete: that employees and contractors cannot use your IP—including to set up their own business or to assist someone else in business.  This is to deter employees and contractors from leaving and becoming competitors; and

Confidentiality: including that IP and trade secrets are confidential and protected.

Website Terms of Use are an important shield against competitors looking to copy IP from your website and social media.  These should include:

IP rights; Rules for republishing your content; Prohibited conduct; Disclaimers, e.g. website content is not advice; and Limiting your liability.

Frequently Asked Questions about Protecting IP

Q: What is an IP licence agreement?
A: A licence agreement is an agreement between an IP owner and another party, granting permission to the other party to use the IP for a set period of time and on certain conditions. Having this agreement will help avoid disputes over the IP rights of both parties.

Q: What is an IP assignment agreement?
A: An IP assignment agreement is a transfer of ownership of the IP from one party to another.

Q: Can I commence legal action if someone steals my intellectual property?
A: Yes. You can take legal action for IP infringement if you are the registered owner of the IP. We have a team of intellectual property lawyers who can assist you with advice on how best to enforce your rights.

How can LegalVision help me?

LegalVision assists businesses and individuals with tailored online legal advice for a fixed-fee, including the protection of intellectual property.  Call LegalVision today on 1300 544 755.

Author Bio: As LegalVision’s specialist trademark lawyer, Daniel can help you with your trademark registration process and provide advice on how best to protect your brand. In addition to his trademark experience, he’s an experienced litigator and brings in extensive IT know-how as well. Daniel uses both his in-depth technical knowledge and legal experience to understand his clients’ business needs and help them achieve the best possible outcome.

This article featured in the April Edition of Paeds Biz.

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