As businesses grow, so does the intellectual property (IP) created by the business. You may have grown your business through discovering new ideas and solutions, all of which are considered the IP of your business. Many small businesses only trademark their logo. However, as your business grows, it may be worth considering protecting more IP. Below, we set out the key considerations for your medium business regarding intellectual property.
If your business has not registered a trade mark, you consider doing so in order to avoid others infringing upon your brand. Trade marks also allow you to distinguish yourself better from your competitors and to ensure that you will be able to continue growing and running your business in the long term without worrying that someone else will attempt to use or imitate your brand name.
Registering a trade mark also provides you with rights to enforce the trade mark and to prevent infringement of it under the Trade Marks Act 1995 (Cth). A trade mark is not merely limited to the logo of your brand but can also include a distinctive slogan, word, sound, shape, smell or colour.
If your business has a substantial role in the design industry or sales of your product are based primarily on a particular visual appearance, then it may be worth considering registering the design of the product. Note that the design must be both new and creative for it to qualify for registration.
Protect your Trade Secrets
Confidential information, or trade secrets, may be easily shared or disclosed in the course of business. For example, information may need to be passed to your web designer who is designing your website. To prevent confidential information from being disclosed, ensure that Non-Disclosure Agreements (NDA) are signed with partners, third parties, employees and contractors. Being able to present an NDA in the case of a dispute will also show that you have taken reasonable steps to protect what can then be proven as trade secrets.
Protecting your IP for a Medium Business
Clarify what IP your business owns and what you can enforce against others. One major area of confusion is with employees’ rights – does the employer own the intellectual property created by its employees? In general, the answer is yes, if it is created in the course of the employees’ employment. However, the case of Courier Pete Pty Ltd v Metroll Queensland Pty Ltd  FCA 735 highlighted the importance of protecting IP in an employment agreement. The case found that it is important that as the employer, you have set out what the employee has been hired to do and what could constitute as being in the created in the course of employment.
As a medium business, intellectual property considerations are paramount to protect fresh designs and new ideas. It is recommended that you take measures to protect what is crucial and distinctive to your business as it grows and that you are aware of what IP is rightfully yours so that you are better prepared in the event of a dispute. Contact an IP lawyer if you have any questions about your medium-sized business.
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