1. Protect your branding with trademark registration.
See my earlier Pink Sky Magazine blog on The Most Common And Costly Intellectual Property Mistake in Small Business (see previous blog) and how to create a Super-Strong Brand (see earlier blogs by Cathryn).
2. Intellectual Property Ownership And Contracts
An area in which intellectual property ownership there seems to be a never-ending feast of legal work for people like me, relates to disputes about intellectual property ownership.
Intellectual property ownership disputes can often be avoided by having appropriate agreements in place before the intellectual property is created. This should be to be covered off in terms and conditions, employment contracts and service contracts.
Intellectual property can include things such as designs, websites, copyright in manuals and other documentation.
My clients are often devastated to learn that they did not own intellectual property in written and graphic material created for or buy them. They thought they were getting intellectual property ownership, but either the contract said something different, or the Copyright Act default provisions meant that they did not automatically obtain copyright ownership.
Be careful of what you agree to when signing up with providers. For example, Amazon Web Service, which is a very popular hosting service, has the right to use and commercialise any intellectual property that is uploaded to its servers. One of their former customers took them to court over this in the USA, and the court confirmed that Amazon Web Service was entitled to use the customer information in any way they saw fit, including making money from it without giving any to the customer!
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”. Exactly what is meant by “unfair terms” is not yet clear. What is clear is that if you have standard contracts that you provide to your clients, and they are not able to negotiate the terms with you, your lawyer should already have let you know that you need to review the existing contracts to make sure that they do not fall foul of this new law.
Many contracts drafted before that date will fall foul of that 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 are filed to protect inventions. A patent protects the way something works (for example, the Dyson cyclonic suction in a vacuum cleaner). If someone copies your patented vacuum cleaner, they will infringe the patent if they work in the same way, whether or not they look the same.
In order to make sure that you can obtain a valid patent, it is important to keep your invention secret until the patent has been filed. This means that you should not show your invention to others, test it in public, or tell other people about it, unless you have a non-disclosure agreement (NDA) in place first.
It is, therefore, important to have an NDA in place first, if you are going to reveal your innovations (for example to a potential manufacturer or business partner). Without such an agreement in place, you risk not being able to obtain valid patent protection.
Television program such as the “Shark Tank” and the proliferation of start-up hubs have had the unfortunate side effect of encouraging people to reveal their innovations before they have had the proper patent protection in place.
In order to get a patent, your invention does not need to be remarkable. Often our clients underestimate the value of their creativity.
If you are unsure if your innovation can be patented, contact a patent attorney (note: lawyers are not qualified to file patents).
4. Avoid infringing patents
The flipside of obtaining patent protection for your own invention is to make sure that what you do does not infringe the patent rights of somebody else. Recently one of our clients who imports goods imported cell/mobile phone chargers that looked like ones she had seen in large Australian department stores. She unknowingly imported chargers that potentially infringed a valid Australian patent. She ended up having to destroy the chargers she had imported and agree not to import any more. This ended up being very costly for her.
Please note that even if you have developed your own product, it may infringe a registered patent. To be guilty of patent infringement you do not need to copy someone else’s product or process, or even know that such product or process exists. A patent attorney will be able to let you know if you are at risk of infringing a patent.
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. http://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.
NZ & AU Patent Attorney (Partner)
QLD Solicitor (Director,Acacia Legal Pty Ltd)*
Tel: +61 7 3418 0974
Fax: +61 7 3014 8765