Upping your IP game
Intellectual property (IP) rights are powerful because they give you the right to determine who can use your intellectual property and how they can use it. There are always people who would like to benefit from your clever works, so it’s important that you consider patents, trade marks, copyright, designs or confidentiality to protect your IP.
IP infringement can result in loss of market share, and result in slow growth and loss of revenue. It’s your responsibility to register and protect your IP assets. Otherwise, you may have to defend your brand or creative works without any legal protection, which can be very expensive and time-consuming process.
If you are on top of your IP game, you can set yourself apart from your competitors. You give yourself a much needed edge, in a market that’s becoming increasingly globalised.
At W3IP Law, we get to know you and understand your business and IP needs. We can help you with trade marks, copyright, designs, patents, domain names, confidentiality and trade secrets, IP management and audits, and IP litigation. You can read our Practice Values here.
Protecting your IP is well worth your time and effort, and isn’t as difficult as you may think.
Identify your IP
An IP audit can be compared to a stock audit. It requires you to identify all the information of your business that relates to IP and IP ownership. Think about what IP you own, like:
- Trade Marks (for logos and brands) – Your brand name or logo or any other sign that you use as a trade mark to distinguish the goods or services that your business supplies.
- Copyright (including literary and artistic works, software, databases) – A work or creation founded upon your skills and labour. Copyright can cover literary works (including software), artistic works, dramatic works, designs and sound recordings.
- Designs (for the shape or appearance of a product) – A unique design you’ve developed that boasts a new and distinctive ‘shape, configuration, pattern or ornamentation’ (s7.1 of the Designs Act).
- Patents (for new or improved products or services) – A patent protects an invention – any new or inventive device, substance, method or process.
- Confidential information and Trade Secrets – This includes know-how, systems and procedure manuals, customer lists, sales methods, distribution methods, consumer profiles, advertising strategies, lists of suppliers, pricing, specifications, formulas, manufacturing processes, and business and marketing plans.
- Circuit layout rights – Layout plans or designs for electronic components in an integrated circuit, computer chip or semi-conductor. (Computer chips or semi-conductor chips are integral to the operation of electronic devices such as computers, appliances and medical equipment.)
- Plant breeders (for new plant varieties)
Understand your IP
IP is used to describe a bundle of different types of legal rights that protect business and innovation. These rights protect the brand name of your business as well as your clever ideas and inventions. They increase the value of your business, and allow you to benefit from your creations or work (e.g. they give you ownership of tangible assets that you can then commercialise).
IP rights are important because they stimulate creativity and reward innovation. As an IP owner, you have the right to exclusively use your IP and you can protect it against infringement. This discourages potential infringers from using your innovations and acts as a deterrent to imitators.
IP protection safeguards your genuine business assets. Your corporate brand and the know-how you’ve invested significant time and money in. Your business suffers when your IP assets are used without your permission – particularly through the Internet, where all businesses are at the increased risk of IP theft.
If your IP is being copied or used by someone without your permission, you can ask your lawyer to write a letter of warning (‘cease and desist’) or institute court proceedings. This action must be treated with caution, however, as unjustified threats are actionable in Australia. You can also oppose the registration of IP that is subject to a formal registration process on specific grounds where you believe that you will be damaged by the resulting registration. There are strict rules that govern the time in which you can file an opposition against registration of an IP right.
It’s also important that you’re able to enforce your IP rights, because other businesses won’t invest in your innovations unless they’re confident their time and investment will be protected. The legislation which defines IP rights includes:
- Trade Marks Act 1995
- Copyright Act 1968
- Designs Act 2003
- Patents Act 1990
- Circuit Layouts Act 1989
- Plant Breeder’s Right Act 1994
Think IP Strategy
The protection of your IP may require various protection strategies, and will depend on your particular business. You should think about what IP assets you own and whether you have any valuable know-how or trade secrets you need to protect. You should also make sure you’re not using someone else’s IP, and keep any clever ideas secret until they’re protected, as disclosure before obtaining protection can invalidate your IP rights. Keep records when you create a work and use the copyright © symbol, the name of the creator and the year the work was created.
Get the right advice from an IP expert who can help you protect your IP.
Employees and contractors?
The work created by an employee during the course of their work is generally owned by the employer. It’s good practice to ensure you include clauses in employee contracts that address IP ownership and the appropriate obligations in relation to protecting confidential information, know-how and trade secrets. You should educate your employees on the nature of IP and how to develop and protect your IP as well as the importance of respecting the IP rights of others.
Make sure any contractors you engage address – in a contract – how the ownership of copyright will be assigned. You need to ensure you own, or are legally entitled to use, any IP in the works you contract for the operation of your business (including, for example, the images used on your website).
Keep it a secret
A trade secret is an innovative idea or information that you don’t want your competitors to know about. It provides a competitive advantage as it is not known to others, and can be very useful for agile SMEs and innovators, who can licence their technology and share information with larger, well established companies that are looking for new ideas and innovations.
Trade secrets are a fast and easy way to protect some ideas, technology and know-how, and there’s no time limit on the protection. But if you release the secret into the public domain, you’ll lose your protection. Also be aware that secrecy does not give you monopoly rights; if your secret is disclosed or someone else invents the same product or process, you’ll lose any exclusivity to that knowledge.
As a result, trade secrets are often used to protect products with a short lifespan (whereas a patent may be more suitable for products that have a longer life span where the investment in research and development has been considerable).
High-technology firms have increasingly turned to alternative mechanisms to protect their research, development and valuable information in fast moving industries. The inventor in these firms must decide whether to maintain the technology as a trade secret, seek patent protection or release the technology into the public domain. The advantage of contractual secrecy is that protection is available immediately regardless of novelty or other complex legal requirements and can last indefinitely provided the required elements of secrecy are present and the technology can practically be kept a secret.
Know-how and show-how
The know-how of your business is a valuable commercial asset that you should take steps to record, manage and protect. It refers to the practical knowledge and skill or expertise required to run your business. Through trial and error you learn what works and what doesn’t work. This know-how may consist of technical data, formulae, specifications, methods, standards, practices, knowledge, code books, information, procedures, improvements, guides, marketing strategies, processes, pricing, business plans, manuals and trade secrets.
Knowledge management system
It’s best practice to codify your knowledge and skill or expertise systems in the form of documents, manuals, records and standard operating procedures that are continually updated as performances are improved. You should include all the major functions of your business in relation to operation and production, research and development, marketing, finance, purchasing and management.
‘Show-how’ refers to visual content comprising a demonstration of practical knowledge, or how a skill or expertise is exercised. The visual form enables viewers to better see, browse, learn about and understand what’s being demonstrated. Knowledge management applications may provide a graphical representation of knowledge and how things work together. Visualisations may also be used in product communications, user guides, procedures, and training programmes and techniques.
You should protect your know-how and show-how by getting employees and contractors to sign confidentiality agreements, restricting access on a “need to know” basis and by using electronic protection measures.
Social media and IP
The most popular social media platforms include Facebook, Instagram, YouTube, Twitter and LinkedIn. These platforms can be a powerful tool to help your business reach its customers. There are, however, IP issues to consider. In fact, you need to consider these issues even if your business doesn’t use social media, because your employees and customers no doubt do.
You must take responsibility for protecting your IP rights on social media platforms and also be careful not to infringe the IP rights of others. This means you need to ensure you have secured your IP rights, and that you monitor any use of your IP on social media, as well as any communication about your brand. It’s also good practice to be aware of the terms of service for the more well-known social media sites and the licences that apply.
Social media monitoring (reputational risk)
You will need to consider how you’re going to monitor how people are talking about your brand on the Internet and using your content online. There are various social media tools, including Google Alerts, that you can use to automatically track the use of brand names and key terms, and also whether mentions of your brand are positive, negative or neutral.
Social media policy (employee risk)
It’s good practice to develop a social media policy for employees. Your policy should empower employees to use social media tools and provide appropriate standards of conduct. It should address the use and protection of your IP (e.g. disclosure of confidential information or trade secrets), and it should cover social media use whenever and wherever it may affect your brand, reputation or employee relationships.
This includes the risk of defamation claims through derogatory comments posted on social media, and any other breach of your policies, such as harassment.
A business plan is a map to keep your business on track. It focuses on goals and key issues to give your business a competitive edge. Business plans are used by startups to plan how an innovation is going to be commercialised and brought to market. It is important to incorporate IP into your business plan, including:
a description of what IP assets you own (your IP portfolio), including registrable and non-registrable rights
- how your IP portfolio is managed and what steps you’ve taken to safeguard it
- whether you own all the IP assets you use and whether you’re authorised to use the IP assets you don’t own
- an IP policy and strategy for your business, including an employee education programme that covers the management of IP commercial assets
- how the IP will provide value and secure a competitive advantage