In Short
- Check Before You Act – Conduct thorough searches, including online checks and official IP registries, to ensure you are not infringing on another business’s intellectual property.
- Know Your IP Rights – Ideas alone are not protected, but elements like trademarks, patents, and copyrights are. Understand what can and cannot be legally used.
- Get Permission If Needed – If you want to use another business’s intellectual property, seek written consent or a proper licence to avoid legal risks.
Tips for Businesses
Before investing in a business idea, research whether similar concepts are already protected. Use online searches and official databases to check trademarks, patents, and copyrights. Review any contractual obligations that may restrict you. If you need to use someone else’s IP, always get written permission. When in doubt, seek legal advice to avoid costly disputes.
A unique business idea is crucial for differentiation in a competitive market. As you create your business, evaluating whether your new concept or the products or services you intend to offer are already available in the marketplace is essential. Although similar goods and services may coexist, you cannot replicate elements that belong to another business. In Australia, various intellectual property (IP) laws safeguard businesses and their ideas, including trade marks, copyright, and patents. Even unintentional infringement of these rights can lead to significant legal and financial consequences. This article details the necessary steps to avoid infringing on another business’s intellectual property.
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Is an Idea a Protected Form of Intellectual Property?
Generally, mere ideas and concepts are not granted protection, so you will need to see the idea crystalised in some form. Typical forms of IP that businesses can protect include:
- copyright – prevents the unauthorised reproduction and use of original literary and artistic works;
- trade marks – protects the branding elements that distinguish a business’s goods and services from those of its competitors, such as a business name or logo;
- patents – grants exclusive rights over new inventions or innovative processes and technologies for a limited period, preventing others from making, using, or selling the protected invention commercially;
- trade secrets – allows businesses to protect confidential information; and
- designs – protects a manufactured product’s visual appearance (including the shape and pattern).
Conduct a Search
Before investing significant time and resources, you should conduct a vigorous preliminary search of all aspects of your business idea to ensure you aren’t inadvertently replicating another business’ idea. Some materials may be discoverable through a simple online search, while others may require searching specialised databases or IP registries. Conducting the appropriate due diligence could prevent your business from unintentionally infringing on another business’ IP. It can allow you to identify potential issues from the beginning so you can pivot your concept if required. We recommend consulting an intellectual property lawyer to assist you with your preliminary searches.
Continue reading this article below the formCheck if It Has Been Registered
Some intellectual property, such as trade marks, designs, and patents, must be registered before receiving legal protection that prevents others from using it.
Each type of registrable IP will have its official database or register you can search for free. It is crucial to research how these registrations operate and understand the scope of protection they provide.
In comparison, copyright protection is an automatic right that does not require registration. This can make it challenging to understand what materials are copyrighted and when it is appropriate for you to use them. We recommend speaking to an IP lawyer if you are concerned about potential copyright infringement.
Consider Your Own Contractual Obligations
Your motivation to start a business often stems from your experiences in the industry in which you have worked or conducted business. With that in mind, you should review any current or previous contractual relationships you have, as they may have ongoing obligations or impose restrictions.
Pay close attention to particular clauses in your agreements, including:
- intellectual property ownership and use;
- non-competition or restraint of trade; and
- post-termination obligations.
Seek Consent and Permission
If you identify intellectual property that another business owns that you wish to use, the safest approach is to seek express consent from the IP holder.
The intellectual property holder may typically offer to license the IP to you for a fee. However, the licensing structure may vary depending on the situation. For example, if the IP holder is a franchisor, they may require you to become a franchisee to license their IP.
Getting the agreement in writing is crucial when seeking consent or permission to use third-party IP. This written documentation provides evidence of the rights granted and can help limit future disputes.
You should know that using someone else’s intellectual property without proper consent or licensing can constitute IP infringement. This would entitle the IP holder to take legal action against you, including:
- injunctions to cease the infringing use immediately; and
- monetary damages for any losses suffered due to your conduct.
Even if unintentional, these claims can be costly, disruptive, and damage your business’s reputation. Therefore, respecting third-party rights by conducting comprehensive searches and obtaining all necessary consents and licenses before use is crucial.
Key Takeaways
As you develop your business, you should conduct comprehensive research to ensure you are not copying another business’ idea, specifically those covered by intellectual property protections. Some materials may be discoverable through basic online searches, while others may require accessing specialised databases or official IP registries. If a business uses a particular IP you would also like to use, the safest method is to approach the holder and seek their express consent to use it.
If you have any questions concerning whether you have copied another business, our experienced intellectual property lawyers can help as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
A business cannot generally protect just an idea or concept. Instead, it would protect the idea in an executed or crystallised form, such as a registered trade mark, design, patent, or copyrighted work.
If you use such materials without the owner’s consent, you will infringe on their IP rights, exposing you to legal claims. Always obtain permission before using any materials subject to copyright, trade mark or patent protections.
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