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Protecting you intellectual property

Understanding how to protect your business’ intellectual property can be difficult. It’s an invaluable asset that you don’t want anyone else attaining but it can tough to know where to turn to for assistance. Legal aid, hiring a lawyer and even doing intellectual property research online are just some ways to safeguard your business.

Confused about where your business stands on intellectual property (IP)? You’re not alone. The problem is that there are several types that come under the general banner of IP so it’s hard to know what you need to protect your business’ IP.

Before you run off to a lawyer, you first need to look at your business and the kind of IP you need to protect. Every business, for example, has a business name that can be trademarked. However, there are other types of IP that depend on your type of business, from patent registration for new widgets or plant breeder’s rights for horticulturalists.

Intellectual property online
There’s a wealth of good quality general information on IP online. Two websites you should check out are IP Australia (www.ipaustralia.gov.au), home of the national organisation that looks after IP registration, and the World Intellectual Property Organization (www.wipo.int), the international body that oversees IP protection.

Both give a definition for each IP right that may apply to your trade and take you through what happens when you apply for legal protection through the respective body. They also provide a fee schedule relevant to each level so you can see upfront what it might cost to register various types of IP.

Specialist IP law firms may also have basic handbooks or web-based guides that you could use to better understand your IP assets and what you require to protect them. Unfortunately there’s not much in the way of free advice if you have specific questions about your business, product or service, but knowing what you need to protect will determine the next step.

Legal aid
Although there are various aspects of IP protection that you may be able to handle yourself, it is advisable to hire a legal professional to look after your IP. If you’re savvy, you can make the legal relationship quite cost-effective. Assignment of rights, for example, is something you may need to write into contracts when dealing with external suppliers.

“If you do similar transactions over and over, what you can do is see a lawyer once and obtain a precedent document you can use again, that way you incur the cost the first time and only if someone wants to negotiate the terms do you need to go back,” advises David Downie, senior associate at legal firm McCullough Robertson. “It may cost a couple of thousand dollars up front, but compare that to not securing your IP, or giving it away to someone else.”

You may also choose to prepare your own registration for IP Australia, but unless you know what you’re doing and what to cover off before you apply, it’s more efficient to consult an expert.

The expert you should see depends on the IP you wish to protect. Patent attorneys, for example, are particularly skilled in the technical side of a patent. “A patent attorney isn’t a lawyer, they have a scientific background and are trained in the technical rigour of patent applications,” explains Downie. “It’s a technical skill that lawyers don’t have. When you’re looking at whether something can be registered, and the process of registration, you should speak to a patent attorney. Once those rights are in place and you’re dealing with the rights for licensing, for example, a lawyer is appropriate for drafting those documents.”

For trademarks, trademark attorneys will do the job, as can general IP lawyers. General IP lawyers will also look beyond trademarks: “An IP lawyer should be able to advise in relation to trademarks, help with contracts for the security of IP and help with the registration of design,” says Downie.

When it comes to infringement of IP, it definitely pays to have a lawyer by your side. If you’ve been accused of infringing someone else’s IP, a lawyer can represent your case through common law. Success will depend on how much goodwill you’ve built up for your business and what the other party have done with the trademark. “Just because a trademark is registered doesn’t mean you can’t have it struck off for non-use,” explains Downie.

If another business infringed on your IP, a lawyer will draft a letter to let them know of the infringement and tell them to cease and desist. While it’s easy to think you could write a letter yourself, Downie warns of the concept of ‘unjustified threats’ and says it’s safer to let the professionals handle it. “A business is better run if it’s properly advised,” he says. “The lawyer may contact the third party directly to tell them to stop using the mark and if the back and forth doesn’t lead anywhere, you can sue.”

A good basic understanding of your IP assets can go a long way to finding adequate protection, so do a little homework before you start filling out registration forms and you can save yourself a lot of time and money

Tips to protect your Intellectual Property
1. Conduct a search for existing IP. This will ensure that you won’t infringe upon someone else’s IP.
2. Keep your IP confidential. You can do this through legally binding agreements with employees and suppliers.
3. Own your IP assets. Ensure your contract with external suppliers assigns all IP rights to your business.
4. Negotiate a fixed fee with legal professionals. Do this prior to engaging in their services to avoid unexpected cost blowouts.
5. Assert your IP rights. Use symbols such as © ® ™ and IP terminology to let people know you’re serious about your IP.

Case study: clothing label sues
One business owner who knows the value of protecting IP is Adam Richardson of UK clothing label WornBy (www.wornby.co.uk). Richardson recognised the need to protect IP and went straight to the World Intellectual Property Organization to start registering the brand internationally. He was advised to go into each individual category in each country to register the IP, which he found expensive. “We were a million-dollar business at the time and it was a $100,000 investment.”

However, WornBy did what they could to try and protect the brand legally and commercially by launching the label with a clear identity. “When we looked at IP in Australia and New Zealand, it was harder to get protection around many of the creative areas. That led to us protecting ourselves commercially first,” says Richardson. “We went for global protection by establishing ourselves in each territory.”

Richardson is currently fighting a worldwide lawsuit against similar-sounding brand WornFree for infringing copyright. The copycat brand started as Lost Propertee, and then launched itself as WornFree “using a graphic and brand presentation similar to ours,” says Richardson. The imitator also infiltrated the internet by directing searches for WornBy to the WornFree site.

“They then started copying our T-shirts and in some instances were going to some of our accounts saying they were the cheaper diffusion of WornBy. At every level we found ourselves creatively and intellectually mimicked,” he recounts. “The person who set up the company was a former employee of WornBy. He was a freelancer working for one of the design companies we used and he wasn’t under a restraint clause.”

In each country where both WornBy and WornFree trade, Richardson has employed local lawyers to initiate commercial litigation to recover damages to his brand. The lawsuits continue.

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