We look at some common intellectual property FAQs we get asked all the time on Copyright, Trademarks, Patents and Trade Secrets.
1. What is Intellectual Property?
Put simply, Intellectual property (“IP”) is an umbrella term for creations or works in various formats that are produced through human intellect. Intellectual property rights gives the creators rights over the creations of their intellect and provide the creator with an exclusive right to use their invention for a specific time.
IP includes items such as computer programs, scientific or technical advancements, photographs, devices, data, works of authorship, methods and modes of operations, reports, analyses, processes or other information.
2. What are the different types of IP?
Many entrepreneurs do not understand how to protect their ideas and inventions and are clueless as to which type of IP protects their creative ideas and products. The following are the four types of IP:
Copyright: A copyright is a set of rights that automatically vests in literary and artistic work, music, software or movies. Copyright provides the right to reproduce the work, to perform and display the work publicly, to distribute copies, and to prepare derivative works. We discuss copyright in further detail in this article on copyright.
Patents: Patent grants exclusive rights to creators and empowers over certain inventions, and prohibits other persons from making, selling, or using, their products and processes for 20 years. We discuss patents in further detail in this article.
Trademarks: Trademarks are unique word(s), symbols or logos used to depict businesses or products. After registration, the same word(s) or logo comprising the trademark cannot be used by any other person or organisation. This protection continues for the length of the registration.
Trade Secrets: Trade secret is also another type of IP. Trade secrets protect the business ownership of a formula, process, pattern, compilation, technique, program, method, or device that provides a competitive edge to an enterprise. Unlike other forms of intellectual property, the intellectual property remains confidential and is not revealed to the world.
3. What is the purpose of Intellectual Property?
The purpose of IP laws is to promote inventions, new technologies and artistic expressions, while fostering economic growth. Intellectual property allows intellectual property owners to profit from their labour and recognise that their creative endeavours will be defended. This promotes creative innovation. Intellectual property owners are incentivised to create things that generate jobs, make processes more efficient, develop new technology, and excellence in the world around us.
4. What legal protections are available for IP?
Many laws have been implemented to protect IP, based on the different forms of IP. Unauthorised use of IP is described as an infringement. People should take measures and place signs regarding their IP existing IP rights; this will put third-parties on notice of any potential infringement. These rights provide legal recourse through the courts to prevent and obtain compensation for IP infringement.
5. How do I protect my IP?
People work very hard to develop their IP, and that is why they want to ensure that nobody benefits from their hard work without their authorisation. Even though some IP rights are automatic, it is still at your discretion to vigorously protect your work. No entity/person is going to look out for trademark infringement or copyright violations on your behalf.
To protect your IP, you will need to do a trademark application, patent application and in some jurisdictions a copyright application (however in Australia, copyright vests automatically provided all the elements of copyright are satisfied). For trade secrets, an airtight confidentiality agreement will be required before revealing the trade secret to anyone.
You will also need to consider which international markets you will be targeting and whether you should protect your IP in that local jurisdiction. Legal and registration requirements differ for each market.
6. When is the best time to protect my IP?
It is never soon enough to protect your IP. IP registration is time-dependent. Ordinarily, you will not be capable of registering your IP if there is somebody who owns and registered something similar or identical prior to you, so registration as soon as possible is ideal.
You might not have the funds to register/seek protection for all your IP rights from day one. However, that should not prevent you from building an IP strategy and preparing for registration.
Local registration is inevitable to guard your IP. Therefore, IP protection and strategic planning should be put into practice at least a year in advance (to complete the required IP registrations; IP rights cannot be enforced in most cases without registration).
To protect your rights, it is highly recommended that you register before meeting with potential partners, start selling online or attending trade fairs. Once you begin operation, the cost and risk grow higher, and you may have less preventative choices.
7. Are trade secrets and confidential information referred to as IP?
An unusual form of IP is confidential information and trade secrets. For instance, products or services, information regarding your customers, sales, pricing and business strategies that you did not want your competitors to know about.
You need to formulate rules to regulate for classifying which information is confidential:
- When it requires to be labelled as such
- How it is retained safely
- Employees authorised to access it
- Circumstances in which it can be disclosed or who are allowed to reveal it
- Ensuring all employees be aware of rules
Ensure that you execute a confidentiality agreement from the onset to ensure that any outsiders are legally obliged to keep it as secret.
8. When does my employer own my IP?
The general principle is that everything created on the job or during employment becomes the IP of the employer. Employees can claim the ownership of the IP if it has been developed beyond the course of employment. Additionally, employees can negotiate for any IP that is created or some aspects of it will vest or be assigned to the employee.
9. Enforcing IP rights may be expensive, is it worth investing in IP rights if the business cannot afford to prosecute others?
Having an IP strategy enables owners to license IPR to third parties, and also appends a value to a company and may be necessary for potential investors/buyers.
If you must enforce your IP rights, it does not need to be done expensively. IP disputes are frequently settled without going to court; infringers might retreat after receiving a legally worded letter notifying them of your IPR, or may accept to start a resolve with you to settle the dispute.
10. How can I stop somebody else form infringing my IPR?
It is an excellent idea to assert your IP rights whenever possible: for instance, labeling goods with the patent number, attaching the © symbol on the work of authorship, and so on. It may serve to prevent others from infringing your IP.
Detecting infringements may be easy, for instance, if you see a new competitor applying a name confusingly similar to your registered trademark, or manufacturing goods which you think are related to your patent. Instantly provide notice to them that you think they are infringing your IP rights, and endeavour to settle the situation without recourse to litigation. It is essential not to threaten litigation which might end up being unjustified.