We have been contacted by a number of clients recently who are looking to help those in need during the COVID-19 pandemic and subsequent recovery period.
Some clients are looking to expand their current business operations to include a COVID-19-focused offering, whilst others are looking to establish new businesses born out of the pandemic by way of community assistance projects or simply helping businesses be more prepared for the future.
However, when creating new businesses, whether it be during an unprecedented pandemic such as COVID-19 or generally, there are a lot of things to think about. Company structure, investment and funding, sales funnels, supplier agreements, employment agreements – the list goes on. With all of this taking the focus, all too many business owners forget one vital thing – your intellectual property is one of your most valuable assets!
This is particularly the case if you have a brand or business that is unique to a particular set of circumstances, such as creating a solution to an unprecedented problem!
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 to avoid legal headaches in the future.
We therefore wanted to take this opportunity to provide a brief refresher for you in relation to the different types of intellectual property (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 and goods and service pioneers.
Top Tips for businesses contemplating investing in IP
- 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.