Creating something new is a thrilling experience. In the midst of all the hype and celebrations, seeking legal protection is the last thing on our minds. It is critical to you and your business, however, that you think about how you should protect your intellectual property.
Why? For starters, you have put in all the hard work to develop your creation, and it would be a shame if someone just came along and stole it. 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 (except, of course, on movie nights with your partner).
So what exactly is intellectual property?
Intellectual property, or IP for short, describes creations or property of the mind. When you apply your mind to develop something new or original, whether it is a logo, phrase drawings, even sounds and scents, they all fall under 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.
How can I protect my 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.
I want to protect my IP, but I don’t know where to start.
John Smith has been working on an online contracting marketplace, Smith Contracting, for several months, and it is now ready for launch. On reading this article, John wants to protect his IP, but doesn’t know where to start. Where should imaginary John start?
1. Identify all of your IP
a. Easily enough, John identifies his brand name as IP. John visited www.ipaustralia.gov.au to read up on IP, but was still unsure about what other IP he could protect. He contacted a LawPath consultant on 1800 LAWPATH, and after a great chat, decided that there are many other IP creations he could seek protection for, from his slogan “Connect with your Contractor” to the process that the marketplace is run.
2. Think about which IP protection type best suits your business
a. John figures that simply trademarking his brand name, logo and slogan is enough. It gives him 10 years exclusive use, plus first right to renewing it, among other rights.
b. John weighs up the pros and cons of patenting his online marketplace process versus simply ensuring that the information is confidential. He settles that preventing public disclosure of the process and cost-efficiency are higher priorities, and decides to seek an unregistered protection type. He ensures that his trade secrets remain confidential by creating Non-Disclosure Agreements in his MyLawPath app and getting each of his employees to sign them.
3. Search the relevant databases
a. John jumps on LawPath’s Trademark Application for a free trademark search. Thankfully, Smith Contracting’s brand name, logo and slogan have not been trademarked in the relevant class group.
b. John goes on to apply for his trademarks through LawPath’s Trademark Application, and was done within 5 minutes! This gives him time to catch up on the latest episode of Suits before lunch.
4. Conduct an IP audit: do you own the IP you think you do?
a. Smith Contracting’s logo was created by a contracted graphic designer, and John is unsure if he owns it. To be sure, John hurriedly created an Intellectual Property Agreement in his MyLawPath app and gets the contractor to sign it. Phew!
5. Develop an infringement strategy and consider IP insurance
a. As the owner of the IP, John has to monitor for any infringements against his IP. He draws up a process of reporting from his employees to him, and distributes it around. Ten pairs of eyes are better than one!
b. John’s employee, Jane, reports that she saw a website that used his logo. Infuriated, he jumps on the MyLawPath app and creates a Cease and Desist Letter, and sends it off to the website’s owner.
c. While waiting, John considers taking out an IP insurance policy to ensure that any enforcement costs are covered if there is any further infringement and he decides to take the matter further. Luckily, there was no need for that this time. Within a few hours, the logo was taken down.
6. Educate your employees
a. John sends out an email to all of Smith Contracting to tell of Jane’s attentiveness. In his email, he sets out the policy surrounding the IP of Smith Contracting and sends out an information package about IP in general.
This is only a guide. All likenesses, characters and references are fictitious, and any resemblances to real persons, events or businesses are purely coincidental.
Unsure where to start? Contact a LawPath consultant on 1800LAWPATH to learn more about customising legal documents, obtaining a fixed-fee quote from our network of 600+ expert lawyers or to get answers to your legal questions.