When creating a new business, there are a lot of things to think about. Company structure, investment and funding, sales funnels, supplier agreements – the list goes on.
With all of this taking the focus, all too many startups forget one vital thing – your intellectual property is one of your most valuable assets. It needs to be protected.
Intellectual property can take many forms – from brand iconography to technological underpinnings, but there’s one thing all forms of IP have in common: they need to be protected right from the get-go. That’s how startups avoid legal headaches in the future.
So, where do we begin? There are three important points to consider:
- The different types of IP and how they apply to your business
- The different mechanisms used to protect your IP
- What happens if there is a breach of your IP?
Different types of IP
There are three main types of IP that a business may acquire (and needs to protect). They are:
Trademarks are a way of identifying a unique product or business and are used to distinguish products and businesses from each other. A trademark can be a word, phrase, sound, smell, letter, shape, logo, picture, movement or a combination of all, but it must be ‘unique’.
Why are trademarks important? They ensure that your customers know when they purchase your product or service, they’re getting the high-quality promised by your brand. When you purchase a box of fries from McDonalds, the Golden Arch logo on the packaging tells you that you can expect the same fries you’ve purchased innumerable times before. That’s valuable brand association.
Protecting your trademarks prevents competitors from offering a different product or experience and passing it off as yours.
A patent is an invention and, once registered, gives you the exclusive right to commercially exploit that invention for the life of the patent. In registering your patent, you are required to disclose to the public how the invention works.
Patents are important because they ensure other companies can’t simply take your unique invention and begin marketing it as their own. Imagine how you’d feel if you invented a revolutionary new product, and then 100 other companies took your idea and started selling it to your customers.
This is the most common form of IP, and is the cheapest because it’s free! Copyright protection is automatic as long as the work it covers is original and falls within certain categories (for example, music or photography) and gives you, the author, the right to print, publish or perform the work. To claim copyright, it is important to place a copyright notice in and around work you wish to protect.
Copyright issues have become a very murky legal area in the digital age, which makes ensuring watertight legal protection even more of a must for creatives.
Protecting your IP
Now we’re clear on the importance of protecting your IP and the different forms of IP you may need to protect, where does a start-up actually begin?
When it comes to brand-focused IP, applying for a trademark consists of three key steps. You read that correctly, just three. First, you need to search the trademark register to ensure the trademark you want to use is available. There’s not much need for explanation here – you can’t trademark something that’s already been trademarked.
Great news, you’ve just discovered your trademark is available! Now comes the next step: research into the goods or services applicable to your prospective trademarks. This may seem pretty obvious off the top of your head, but it requires some serious thought and is not something to be rushed into. Consider these bullet points offered by IP Australia on the subject:
- Where do you derive your business income?
- What is the nature of your business?
- What are you known for by your customers/clients?
- What products or services does your business provide?
Once you’ve got all of these points solidified and you know exactly what you’ll be seeking to trademark, it’s time to lodge your application. You can do this yourself online by using IP Australia’s online tool, however you would be well advised to speak with a qualified IP lawyer before-hand to ensure you’ve crossed and dotted all relevant letters in your submission.
The process for patent applications is similar, but it requires even more planning, foresight and advice because there’s a crucial additional stage: ensuring that the technical and/or mechanical specifications of your invention are watertight.
It is important to note that protection of the relevant IP only lasts for set time periods, and IP protection must be renewed on a regular basis.
Breach of your IP
Breaches of IP are unfortunately common, particularly in the digital age. If the correct protection is not in place for your business or product, then the goodwill associated with your business or product may be exploited and used by third parties with limited recourse.
It’s always best practice to have an IP infringement strategy in place, which not only sets out the parameters of your IP protection, but also caters to the process for dealing with infringements. Court proceedings are not always the answer, and there can be many difficulties in taking action against possible infringements – not only will you need to establish IP ownership, you also need to take into account the potential costs of proceedings compared to the value of infringement action succeeding.
Top Tips for start-ups
Considering all of the above, our top tips for new businesses are:
- Enquire into applying for and registering trademarks and/or patents at the earliest opportunity.
- Look to include copyright notices on all works you wish to protect.
- Keep records of the IP you own, including permissions and licences to third parties.
- Develop an IP infringement procedure.
- Keep trade secrets…secret! (unless required by law or as part of applications to protect your IP).
- Dates matter – ensure good records are kept of your IP licenses as well as key dates throughout the creative process for products and inventions, including registration and renewal dates.
- Know the difference between ® and ™ so that you use them correctly –™ is used to confer a claim/right over a specific IP (but that right is not registered), and the ® symbol can only be used once that specific IP has been registered and approved within the relevant jurisdiction.
- Consider having a non-disclosure agreement in place (with third parties) to protect your IP and confidential information.
- Ensure your IP is protected in the correct jurisdiction – registering your patent in Australia will not cover it in the US!
There is an abundance of information contained on the IP Australia website. However, when it comes to drafting applications for trademarks and patents, and copyright notices, it can be a very tricky process best left to the legal experts. Protection, and breach, of intellectual property is a complicated minefield of rules, regulations and time restraints and (just to add to the clarity) IP laws change from country to country.
If you need any advice or assistance relating to your intellectual property rights then please don’t hesitate to get in touch with us.
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