Intellectual property is sometimes seen as an area shrouded in mystique, but it is not inordinately complex, and can with some professional advice be an area comfortably navigated by any entrepreneur. Australia and its major trading partners have broadly similar intellectual property protection regimes that reflect trade-related and policy commitments to rewarding innovation and enterprise while not unduly limiting free competition.
Intellectual Property 101
A key point to grasp is that there are different intellectual property genres that serve different purposes, and some will be more important than others depending on the circumstances. A new tech startup may lean towards a patent-centric strategy, whilst a marketing venture will be very mindful of their trade mark position.
The primary and most familiar genres of intellectual property protection are:
- Registered trade marks – protects brands for particular marketable goods or services
- Registered designs – protects visual appearance of new product designs
- Patents – protect technological innovation
- Copyright – protects tangible manifestation of original works, be it drawings, photographs, text, music and so on.
- Trade secrets – protects proprietary information which is maintained as confidential
Those paying attention will notice that ideas are not awarded their own category of intellectual property protection. There is simply no effective way of protecting an idea. Protection is awarded instead to the manifestation of new ideas as a tangible applied technology, new product design. Ideas made concrete, if you like.
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A brand is a placeholder for your reputation, and a repository of goodwill arising from your great reputation – so it is never entirely unimportant. There are two allied hurdles that must be cleared for success:
- You must be free to use your intended brand for the contemplated business activities, avoiding any third party rights that might be used to stop you.
- You ideally should be able to establish a trade mark position against any later competitors who might seek to benefit from your reputation
A consequence of neglecting to check third party rights can lead to you being shut down, and force an expensive and damaging re-brand. Sometimes, this will only happen once you have achieved some profile. There is often a temptation to select a generically formulated and pseudo-descriptive name. This is often a mistake unless accompanied by a very strong visual identity. As a practical matter, for many businesses, it is also especially important to check if suitable web domains and social channels are available for your contemplated venture.
As a business idea forms, you typically want to start discussing with people by way of exploring feasibility, interest and opportunity. But you’re supposed to keep your technology secret before applying for patent protection, aren’t you? Yes, and this is, in fact, a widely recognised problem, between sharing your enthusiasm and not compromising your rights. So this is dangerous territory, as untimely disclosure can jeopardise your rights entirely. Any disclosures that touch on a protectable subject matter should only be made under (documented) confidentiality before any patent filing. Even post-filing, you should be mindful of being overly quick to share undocumented material. As this is such a common problem, some countries have grace provisions that protect patent applicants against themselves, though only for a limited time, and also certain circumstances. This is not universal, however, and should not be relied upon.
Do you even own your Intellectual Property?
Anybody who has seen an episode of entrepreneurial reality television show Shark Tank will know that a first hurdle question uppermost in the mind of any shark is: “Does this business own its intellectual property?”. This may sound like a trite and pointless question, it is increasingly important so as the economy becomes more collaborative in nature. Your intellectual property is often commissioned from third parties, or jointly-developed, so it is vital that you document the transfer of any intellectual property rights back into your business structure. Intellectual property ownership is often overlooked, with a benign outcome, but if it becomes a problem it can be an expensive and dramatic problem. Should you not have clear rights to your intellectual property, you might not be able to operate. The maxim of getting advice before you need it, rather than after you need is as true for intellectual property as many other fields.
Article written by David Perkins – A patent attorney located in our Melbourne Office.