Part 1 of this blog, discussing tips Intellectual Property Tips 1 to 4, can be accessed here http://pinkskymagazine.com/2017/05/03/7-intellectual-property-tips-for-your-small-business-part-1/
While patents (discussed in my previous blog) protect the way that things work, Registered Designs protect the way that products look. A Registered Design is suitable to protect new jewelry or furniture; anything that relies on the look or shape of the product.
Designs can only be protected as Registered Designs if these are filed before the design is revealed to others.
If you are in an industry that relies on the design of the product (the shape or look of the product), searches should be conducted to ensure you are not walking into an infringement that could stop you in your tracks.
Copyright protects the expression of an idea.
Unlike patents and registered designs, copyright is not a right that needs to be registered. Copyright exists automatically when certain types of materials are created, such as images, photographs, written material, videos etc.
Copyright is the right to copy or modify the copyright work of others.
The best way for small business to avoid copyright infringement is to ensure that they create original content, or from material for which you have paid a license fee.
It is also important for business owners to ensure that when they get someone to create material for them, that the business owner owns the copyright in that material. For example, I had a client who had a designer design their logo. When they came to register their logo as a trademark, the designer demanded further payment, and pointed to their terms and conditions which said that the designer owned the copyright in the logo.
Some businesses are caught out by photographers who retain the copyright in the photographs that they take for the business. Personally, I only deal with photographers that assigned copyright in the photographs to me, as I wish to have the right to use those photographs without limitation within my business.
The bottom line with the copyright is that if you are having somebody create photographs, logos, videos or written material for your business, it is always wise to ensure that both sides agree, in writing, that copyright will belong to the business owner. You do not need a complicated contract, and an exchange of emails would be sufficient in this type of arrangement.
It is not uncommon for disgruntled (former) employees, potential business partners and competitors to make a meal of information that was intended to be kept confidential.
Once the confidential information is leaked, even if the leak is unauthorised, the information is no longer considered confidential. Appropriately worded employment, contractor and other agreements can minimise this risk.
This also applies to potential investors, who should be bound by an NDA (a non-disclosure agreement). Where an investor refuses to sign an NDA, you may want to carefully consider whether that potential investor is the right fit for your business. Without the NDA in place there is nothing stopping the investor from taking the idea as their own.
A client of mine had a situation where he revealed a new business method to a potentially large client. He was so eager to get the client on board that he did not follow my advice to get an NDA before talking with the potential client. The potential client decided not to license this new business method from him. Unfortunately, he found out some months later that the potential client had simply replicated his innovative business method in-house. Their documentation was sufficiently different from his not to amount to copyright infringement. He had no NDA in place and could not stop them from taking his idea for their own.
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
NZ & AU Patent Attorney (Partner)
QLD Solicitor (Director, Acacia Legal Pty Ltd)*
Tel: +61 7 3418 0974
Fax: +61 7 3014 8765
* 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.