Protecting your Intellectual Property is key to your business’ growth and success. 

  • Intellectual Property (IP) is a term used to describe various exclusive rights to creations of the mind. IP includes copyright, trade marks, patents and trade secrets.
  • In most cases, to protect your IP, you need to register it to gain protection. Different IP rights vary in the protection they grant.
  • As an IP owner, you can take steps to enforce your legal rights against people who are violating or infringing on your IP.

Protecting Intellectual Property

Intellectual Property (IP) is a vital asset. IP adds value to your business 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

Copyright protects the creative expression of ideas, in writing, music, visual images, moving images and computer programs. It can also protect content such as databases and broadcasts. As the owner, it provides you with the exclusive rights to use, copy, license, perform and modify the creative work. A copyright notice states who created the work and when.

Your rights to certain works can change when you are engaged in a certain type of work or service. 

For example, an employer will most likely retain the copyright of any creative work that their employee produces during the course of their employment. The employment contract will likely stipulate any IP rights.

Trade Marks

A trade mark is a sign used to distinguish your goods and services from those of other traders and competitors. A trade mark can be a business name, logo, letter, number, word, phrase, sound, smell, shape, logo, picture or aspect of packaging. A registered trade mark is legally enforceable, meaning that you can use it to protect your brand and deter competitors from using a similar mark. 

A trade mark provides you with exclusive rights to commercially use, license or sell your trade mark, in connection with the goods and services for which it is registered. You can also enforce these legal rights if someone is copying your branding or has deceptively similar branding. An unregistered trade mark has some legal protection, such as the areas of:

  • misleading and deceptive conduct; and 
  • passing off.

Patents

A patent is an exclusive licence to make, use or sell any invention, device, substance, method or process which is new, inventive and useful. It is a good idea to protect your business to ensure other companies do not make, use or sell the same device, substance or method.

There are two main types of patent application in Australia. These are the:

  • Standard Patent Application, which involves an ‘inventive’ step; and
  • Innovation Patent Application, which involves an ‘innovative’ step.

Both applications provide different types of protection. You can check our website to understand the difference between a Standard and Innovation Patent Application. Please note, however, that innovative patent applications will cease from 25 August 2021. 

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.

Confidential Information can also include personal information that is shared in the employment context. Most businesses will have a privacy policy in place, and prudent employment contracts will contain clauses that specify the use and disclosure of certain confidential information.

Key Considerations

  • It is vital to record your idea, invention, method, or design in detail. You can protect your IP by taking measures to discourage misuse. You should record your idea in detail through detailed drawings, descriptions, plans and records. This can prove your ownership if any disputes arise.
  • Keep track of your IP in a register, along with who has access to it and on what conditions. This will help you to manage your IP rights and enforce them if required.
  • IP Australia handles all IP registrations in Australia. The Institute of Patent and Trade Mark 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

Registration

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. Registration with IP Australia provides coverage in Australia only. However, LegalVision can also help you register your trade mark, design application, and patent overseas. 

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 contractor and employee agreements. The key clauses you should include are:

  • assignment: all IP created for your business are assigned to your business;
  • non-compete: that employees and contractors cannot use your IP including to set up their own business or assist someone else in business. This is to deter employees and contractors from leaving and becoming competitors; and
  • confidentiality: IP and trade secrets are confidential and protected.

Website

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

  • IP rights;
  • rules for republishing your content;
  • prohibited conduct;
  • disclaimers (e.g. website content is not advice); and
  • limiting your liability.

A Website Terms of Use also provides information about who owns the content that is available on the website, such as images or articles.

Frequently Asked Questions about Protecting Intellectual Property

Q: What is an IP licence agreement?

A: An IP 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. The agreement will specify current and future IP rights among other important clauses to ensure the successful transfer of the IP rights.

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 protecting intellectual property. Call LegalVision today on 1300 544 755.

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