1. Protect your Branding
How would you feel if you found out that you could not use your brand name or business name any more?
While most Australian businesses have their business names registered, this alone is not sufficient protection. To ensure ownership of your brand or business name, make sure you have it registered as a trade mark.
A trade mark registration is valid for 10 years and generally protects you in Australia only, unless you extend it overseas. It can be renewed for further 10-year periods.
If someone accuses you of infringing their trade mark and you have your own registered as a trade mark, that is a complete defense you can use to overcome their case.
2. Avoid IP Ownership Disputes
Disputes over Intellectual Property (IP) are an area of never-ending work for legal professionals like me. Many of these issues could be avoided by having proper agreements in place. Appropriate terms and conditions, as well as employment and service contracts, can help to protect your business from future IP disputes.
On 12 November 2016, a new law came into force in Australia, which says that standard contracts with small business must not contain “unfair terms”. Many contracts drafted before the introduction of this law will now be deemed unacceptable. It might be time to check that your terms do not fall foul of this law.
More information can be found on the ASIC web page: http://asic.gov.au/about-asic/what-we-do/laws-we-administer/unfair-contract-terms-law/unfair-contract-term-protections-for-small-businesses/
3. Protect Your Innovation With Patents
Patents protect original inventions, as they give the inventor a monopoly.
Patents protect the way the product works or could protect a method. For example, imagine that you have invented a new kind of toaster. If someone creates something similar to your patented toaster, they will infringe the patent if they work in the same way, whether or not they look the same, and whether or not they copied your toaster or came up with the idea, without knowing about yours.
To ensure your patent is valid, the invention must not be revealed to the public or marketed until this protection is granted. If you plan to reveal your innovation to potential investors, make sure to have a non-disclosure agreement (NDA) in place first.
Also, make sure you are not infringing someone else's patent, especially if you produce or import a product. You can infringe a patent without even knowing that one exists.
4. Registered Designs
Registered Designs protects the physical design of a product. This is especially important for any industry which relies on aesthetic design such as furniture or jewelry. Just like a patent, in order for a Registered Design to be valid, the product must not be revealed to the public before the registration is filed.
Copyright protects the expression of an idea. Unlike patents and Registered Designs, copyright is automatically granted for certain types of materials such as written work, drawings, photos, videos.
Always ensure that you own the copyright to any content created for your business, for example, a logo design. Be sure to check the terms and conditions for subcontractors and freelancers, as sometimes creators state that they have full copyright ownership.
Personally, I only deal with people who assign copyright to me, as I wish to have the right to use that material without limitation within my business.
To make sure you do not inadvertently infringe the copyright of others, it is safest to either create your own content or purchase a license for content created by others. You do need to make sure it is not a limited license. For example, some copyright licenses need to be renewed annually or only allow you to use the material in digital format.
6. Trade secrets
The knowledge, strategies, and plans for a business often need to stay confidential. Sometimes potential clients, ex-employees or competitors will leak trade secrets. The risk of this can be minimised by using well-written employment and contractor agreements.
Any person from outside the business who is let in on a trade secret, for example an investor, should be bound by an NDA. A client of mine once had the opportunity to present a groundbreaking business strategy to an investor. Months after this meeting, my client discovered that the investor had stolen his business method.
My client had literally given away his IP in his business method by revealing it to the investor without any the investor first signing an agreement to say he would not take the information and use it himself (note: the investor copied my client’s ideas, not his written work, so he avoided infringing copyright in my client’s written work).
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Cathryn Warburton is an internationally award-winning solicitor, patent attorney, mentor, author and speaker. She is The Legal Lioness with a passion for safeguarding her clients’ business and intellectual property interests. She founded Acacia Law when she realised that law firms run by old men were too inflexible to empower her to tailor her legal solution to each client’s needs. www.acacialaw.com
* Please note that this blog is provided for general informational purposes only. Each legal situation differs. Reading this blog cannot replace obtaining specific legal advice. We recommend that you obtain legal advice for your specific situation.