As lawyers we often get asked the question of "how to legally protect a business idea?" The starting point should always be to conduct an intellectual property audit to review names, logos, unique processes, service offerings and trade secrets, as well as design, shapes and colours of products. Manookian Solicitors can provide these services for you, which are vital for any business. Your business’ intellectual property is a valuable asset. As a business owner, it is vital that an owner consider what aspects of their idea can attract intellectual property protection and by what means. Your intellectual property can provide a competitive edge for your business in its own right and that is why you need to ensure that you are adequately protecting one of your most valuable assets.
There are different types of intellectual property protection that are suitable for various aspects of the business. It is important that you know the difference between business names, company names, domain names and trademarks. It is a common misconception that the registration of a business name, company name or a website domain name confers some form of ownership or exclusive rights to the use of that name in Australia. The reality is that it does not!
Trademarks
Trademarks are intangible assets of your business and can include your brand name, logo, shapes or aspects of packaging, colour, signatures and so on. Importantly, trademarks accumulate the goodwill of your business by attracting customers who become familiar with the name or logo of your business or your products or services. The value of you trademark cannot be underestimated!
Registering a trademark is vital to protect your brand. In this way, even if you can’t use the business method exclusively, it will become synonymous with your branding.
A registered trademark will give you the exclusive right to use the business name or logo in association with your business. Having a registered trademark can provide legal protection for your business, and gives you statutory rights to prevent another business from using the same or similar trademark.
A registered trademark is a valuable marketing tool, as well as an appreciating asset of your business. If you have invested time building your businesses reputation and identity around your business name, then you should protect it. When it comes to trademarks and branding, the more you use it, the stronger the protection.
Patent and Design Registration
A patent protects the function of an invention which contains a novel feature that has not yet been seen or used in the industry. Design registration protects the aesthetics of a product that is a novel design. By registering a novel patent or design, it will grant the owner the exclusive right to commercialise the product for a particular period, before allowing other members of the public to start creating and selling a similar product.
A business model may be patentable where the method uses a physical device in a substantial way to make the method useful. If you use technology but only in an incidental way to deliver a service, then it would not be patentable, however if the technology or specific features of the technology that makes the service possible may be patentable.
Copyright
Copyright will give you protection of an original expression of an idea (for example, writing and literature, music or art). However, it should be understood that a copyright does not protect the idea itself, which means, another party could potentially use some of the ideas or concepts behind your work to produce their own material. In Australia, copyright is automatic, there is no process of registering a copyright. As a general rule however, it is recommended that the symbol © is used as a copyright notice on your material so that others know that you own the copyright. This notice along with your terms in the contracts you enter into should protect your copyright.
Confidentiality Agreement
An NDA (also known as a confidentiality agreement or non-disclosure agreement) is a legal contract, which should be used when sensitive information needs to be shared between two parties. It ensures that the person or organisation who gains access to sensitive information doesn’t disclose it to a third party. An NDA is entered into for the purposes of protecting information disclosed before entering into a contractual relationship. For example, a business owner may meet with a software developer to explain their concept before engaging the software developer’s services to create an app. You should always insist upon an NDA being signed for early stage discussions to ensure protection of your trade secrets, recipe or formulae, so that the other party doesn’t use the information you provide for their own purposes.
Employment Agreements
A well drafted employment agreement will have confidentiality and intellectual property clauses contained in the employment agreement. The employment agreement will bind employees to confidence, during their employment and after they cease to be an employee.
Confidentiality clauses in the employment agreements may also address trade secrets. A trade secret is any confidential business information which provides a company with a competitive edge. The business may disclose trade secrets during the employment relationship and require employees not share these with others.
What should you do?
There are many avenues for protecting the intellectual property of your business. Some will involve registration of your brand or certain products or systems. You need to address these types of intellectual property early. You should check that the contracts you sign will protect your confidential information and state what part of the intellectual property you will own. Similarly, if you are preparing contracts to give to others, it is important to include clauses relating to confidentiality, intellectual property and trade secrets. These should be front of mind of your business to ensure your intellectual property is always protected. Manookian Solicitors will assist you in reviewing your current contracts to identify any issues or matters of concern that may become an issue. If you are entering into any new contracts, contact us to discuss on how we will assist you before you sign!
If you have any questions on how to protect your brand or need assistance registering a trademark, NDA or employment agreement then get in touch with Rostom Manookian, 0416 716 960 or email rostom@manookiansolicitors.com, we work with you to assist and guide you through the specific requirements. We offer fixed fee services to ensure that you have transparency and clarify of legal fees.
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