As an entrepreneur, you should understand the most common challenges you may face concerning your intellectual property (IP) as you embark upon your new businesses. With some research and framework knowledge, you can ensure you are setting yourself up for success while developing methods for overcoming these obstacles. In this article, we will discuss three key challenges entrepreneurs may face, including:
- failing to protect your IP adequately;
- online copyright infringement; and
- similar existing trademarks.
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Failing to Protect Your IP
Entrepreneurs often need help understanding the level or type of IP protection necessary to provide adequate security. Generally, it is helpful to understand that copyright protection is automatic and applies to material expressions of original work. It does not apply to all artistic works, and whether copyright is sufficient will depend on a case-by-case basis.
Furthermore, a patent can be granted over an innovative and novel invention, giving its owner an exclusive right to exploit that product in exchange for its disclosure to the public.
While unregistered intellectual property rights offer some protection, the safest strategy you can implement as an entrepreneur is registering your IP where possible. For example, registering your trade mark is the most powerful way to stop others from using your trade mark or something very similar, and in doing so, confuse and potentially detract your customers.
Online Copyright Infringement
The technology-driven and hyper-online world we live in is conducive to the relatively simple replication and reproduction of others’ work in a matter of moments. As a result, infringement of your IP can be difficult to track down online. However, once you do, the biggest challenge is proving that the copycat used your work and not anyone else’s.
If you identify that someone else is using your IP online without your permission, the usual first step is to write to this other party and ask them to take down the infringing material. For example, suppose someone has taken the photos you took exclusively for your online clothing store and replicated them on their website. In this case, you might contact them, asking them to remove the photos from where they display them. If they do not respond or refuse to take the material off their website, the next course of action would be to commence court proceedings.
This presents a financial challenge for entrepreneurs, and you must weigh up the costs and benefits of commencing legal action. Further, it would help if you considered whether the other party makes financial gains by reproducing your work or received another unjust benefit.
Continue reading this article below the formSimilar Trade Marks Already Registered
One of the most frustrating challenges entrepreneurs may encounter is discovering that your intended trade mark is already registered or used by another trader. As a result, it can be highly discouraging to go back to the drawing board to brainstorm a new exciting brand name. Beyond this, it can be a costly mistake if you have already started product packaging production or invested in a domain name.
The best way to prevent this obstacle is to register your trade mark as soon as possible in all countries where you plan to offer your products or services. This is crucial to:
- block others from registering similar or identical trademarks; and
- find out earlier rather than later if similar trademarks are already registered, so you can consider modifying your trade mark before investing heavily.
Sometimes, a similar trade mark will not be a roadblock if registered in a different class of goods or services. An IP lawyer can clarify your chances of registering your trade mark if this is the case.
In other cases, similar trademarks may not be an obstacle if:
- the owner has not used the trade mark publicly in Australia for the past three consecutive years;
- the owner has not used the trade mark in good faith or did not have any intention of using the trade mark; or
- you can prove that you started using your trade mark publicly before the filing date of the problematic registration.
Having a trade mark removed can be complicated. First, you must demonstrate sufficient evidence to prove your prior use. To avoid these costly pathways, you should register your mark once you have settled on a name or designed your logo.
Key Takeaways
For entrepreneurs, considering how best to protect your IP may be daunting. However, with careful planning and taking preventative and defensive measures, you can ensure your IP is protected as much as possible from the outset. It would help if you also continued to weigh up the costs and benefits of enforcing your IP rights. The best action is to consult an IP lawyer whenever you are uncertain.
If you need help understanding your IP, our experienced intellectual property lawyers can assist 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
Copyright is an automatic right in Australia. It exists as soon as you express an original artistic work in material form, such as in your unique photos, copy or other website content.
The best way to protect your business name is by registering it as a trade mark, granting you exclusive rights to the name in the classes covering your product and service offering.
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