Creating something new and innovative for your business is exciting. While you’re busy getting your product off the ground, seeking legal protection may be the last thing on your mind. However, it is critical to you and your business, that you consider how you will protect your intellectual property (IP).
As the owner of the creation, you may have a vision of how your creation should evolve, and would like the time and opportunity to work on it without interruptions. To do this with peace of mind, protecting your IP should be a priority.
IP describes a person’s creations or what is called the ‘property of the mind’. When you apply your mind to develop something new or original, whether it is a logo, phrase drawings, sounds or scents, it is considered your IP.
IP rights are legal rights that protect owners of IP. IP rights are an incentive for innovation, by providing the IP owner opportunity to work on and further develop their creation.
Protecting your IP
There are several types of IP protection available.
Registered IP rights, including trademarks and patents, need to be formally registered. Most of the products around you have a trademark in one form or another, like the Apple logo on your Mac.
Depending on your strategy, not registering your IP rights may be the optimal option. For example, the Coca Cola secret recipe and KFC’s 11 secret herbs and spices are very highly guarded trade secrets protected through confidentiality agreements and policies. This strategy works better for Coca Cola and KFC than patenting, so the recipes are not subject to public disclosure.
Where to Start
Identify all of your IP
At this time, you should figure out what your IP assets are. If you run a business, consider elements such as your logo, business name, slogan and products. Also consider how it would affect your business if your property rights were infringed by someone else. Would your business be able to recover? Or are these elements so valuable that it would severely damage your business?
Think about which IP protection type best suits your business
Different types of IP protection suit different types of products. For things such as logos, slogans and names, trademarking is an effective form of protection. Further, displaying the ® symbol will indicate to others that your IP is legally protected.
Another way of protecting your IP is by having the right legal documents. You can ensure that your trade secrets remain confidential by creating Non-Disclosure Agreements for employees and other people you may disclose information to.
Search the relevant databases
You can search different registers to see whether anything substantially similar already exists. For example, you can search trademarks on IP Australia’s Trademark Search Tool.
Conduct an IP audit
You should double-check that you are the rightful owner of your IP. If your designs have been created by an employee, ensure that their employment contract includes a provision which states that all IP is property of your business. Further, if you have hired a contractor you can protect your IP by using an Intellectual Property Agreement.
Develop an infringement strategy
You should keep an eye out for any infringements against your IP. To do this, it may be helpful to have a process in place so your employees can report it if anything seems amiss.
If you or your employees do spot something, your first port of call is to contact an intellectual property lawyer. The first step in enforcing your IP rights would be to issue a cease and desist letter. This letter will inform the infringer that they have infringed your IP rights and that you will pursue legal action if they do not comply.
As your business grows, so too will the value of your IP. It may turn out that your IP becomes the most valuable asset your business has, so it’s important to protect it while you still can.
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