How Can My Business Avoid Intellectual Property Disputes?

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• Establish Who Owns the IP
• Contract with Collaborators
• Protect Your Property
• Document Your Process
• Key Takeaways

Intellectual property disputes are costly, time-consuming and disruptive to your business. They are also relatively common — you may be infringing another person’s intellectual property (IP) if you use software, promotional material or other protected works without permission. This article presents four key ways to avoid intellectual property disputes.

Establish Who Owns the IP

The first step to avoid intellectual property disputes is to identify who owns any IP. For example, whether employees own intellectual property they create during the course of their employment.

This should be contained in an employment contract that also details:

• if, and when, the transfer of IP ownership to your business will occur;
• who is entitled to exploit the IP; and
• whether improvements or modifications to the IP are allowed.

You should also sign similar agreements with contractors.  For example, a newspaper business may hire a contractor to write articles for a weekend magazine. They may both agree that the contractor retain copyright in the articles, but also grants an exclusive licence to the newspaper to publish the work. Therefore, the newspaper doesn’t own the copyright and will be infringing the contractor’s rights if it uses the articles outside the scope of the licence.

Contract with Collaborators

Before your business collaborates with another business or person, both parties should sign a written contract detailing both who owns any existing IP as well as who will own any new IP created during the collaboration.

For example, your business may outsource research and development work to an external research company. To use the results of the research, you will need an IP agreement that covers all the bases. This may include a transfer from the research company of:

• specific rights to the project results;
• copyright for the research reports and results; and
• rights over any physical matter involved in research activities.

If your business shares ownership over any intellectual property with another entity, you should also think about:

• what proportion of the intellectual property each party owns;
• if one of the parties can transfer their rights;
• what the decision-making process is when it comes to exercising intellectual property rights (publication, licensing, or commercialisation); and
• dispute resolution mechanisms to resolve any disagreements between you and the other owners.

Protect Your Property

Registering your IP is important to avoid intellectual property disputes. You can register trade marks, designs, and patents by completing an application with IP Australia. However, before doing so, check that a substantially similar invention, design or trade mark hasn’t already been registered.

Furthermore, keep your work confidential until it has been successfully registered. This helps prevent the work from being imitated. To accomplish this, have everyone with access to the work sign non-disclosure agreements.

Document Your Process

Encourage employees to keep a consistent record of their process when creating work. For example, a scrapbook that documents evolutions of a design, or a computer folder containing plans and reference materials. If another party disputes your claim to the material, you can point to your records as evidence of your ownership. When swimwear fashion brand Seafolly pursued City Beach for copying their English Rose design print, Seafolly designers were able to produce design files that documented the careful evolution of that design.

Key Takeaways

By implementing four key strategies you can avoid the stress and cost of intellectual property disputes:

1. ensuring your agreements with employees and contractors clarify who owns the IP;
2. enter contracts with external collaborators;
3. register trade marks and patents; and
4. keep records of your design process.

If you need more assistance on avoiding intellectual property disputes, call LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.