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Protecting your intellectual property as a small business owner

If you’re a small business owner, the digital space really opens up opportunities to market and promote your brand. Chances are you have your own website and enjoy considerable engagement via your social media platforms. Perhaps you even advertise via Facebook and have an affiliate program in place.

However, with exposure comes risk. In particular, the risk of someone copying or stealing your content or idea. But what can you do? What are your intellectual property rights and how can you protect against this happening?

This article provides an overview of intellectual property and addresses the above commonly asked questions.

What is intellectual property?

Intellectual property (IP) is the broad term used to describe ownership over new inventions, proprietary systems (such as computer software), entirely new applications of an invention, original work and branding. IP rights arise out of the creation of a new invention, although determining whether or not something is genuinely new is not always straightforward.

The main categories of IP in Australia are:

Copyright

Copyright protects the original expression of ideas, but not the ideas themselves. Works automatically protected by Australian copyright include:

• literary works (blog posts, novels and website copy);
• artistic works (paintings, drawings, photos and illustrations);
• musical works (songs, jingles); and
• films and sound recordings.

An owner of copyright has the exclusive right to use, and control the use of, their original work.

Trade marks

A trade mark is a badge of origin. It’s the unique way of distinguishing your product or service in the marketplace, from those of other traders. It’s sometimes referred to as your brand. Not to be confused with a business name, domain or registered company name, the trade mark is the customer facing aspect of your business activities.

More than just a logo, a trade mark can be a number, letter, word, phrase or jingle. It can also be a shape or key feature of your packaging, or a combination of these things. To protect your trade mark, you will need to register it with IP Australia.

Patents

A patent is a legally enforceable right to a device, substance, method or process. Patents can be protected for either eight or 20 years and must be registered via IP Australia. A registered patent will give you the:

  • right to prevent others manufacturing, using or selling your invention without your permission within Australia; and
  • ability to licence someone else to manufacture your invention on agreed terms.

Designs

A registered design protects the appearance of a product. In order to be registered, a design requires an element of uniqueness or novelty. The concept of a design is also limited specifically to visual features of shape, configuration, pattern or ornamentation.

Trade secrets or confidential information

A trade secret is proprietary knowledge and it’s up to you to protect that knowledge. Typically, this knowledge is kept out of competitors’ hands by ensuring employees, distributors and other third parties sign confidentiality agreements.

Establishing intellectual property rights

In Australia, some forms of IP gain protection automatically upon creation, while others must be assessed and approved.

For example, you'll need to register your trade marks to maintain your brand recognition and fend off copycat competitors. This is exactly what the founder of SourceBottle, an Australian web-based business, discovered when she sought to expand her journalism services overseas. Although SourceBottle had a domain name in Australia, a similar domain name was used for a martial arts studio elsewhere. Fortunately, the competitor domain holder had not registered the trade mark either, allowing SourceBottle to register and subsequently purchase the international domain name also.

Copyright ownership also plays a significant role in the protection of your IP. If you seek to take action against a person for unauthorised reproduction of your work, it must be clear that you own the copyright. You cannot protect what you don’t own.

Some basic copyright principles to consider include:

  • the first owner of copyright is generally the author or creator of the work, although exceptions do apply
  • payment to third parties for work does not mean that you own the copyright
  • copyright can only be assigned in writing, and
  • in Australia, copyright is free, automatic and cannot be registered.

You will not own copyright simply because you requested and paid for the work in which copyright exists.

Enforcing your intellectual property rights

Prudent IP owners will actively carry out searches for unauthorised use of their IP. This may involve searches of the Trade Marks Register or copying and pasting content, including images, into Google to disclose unauthorised use of that material. If unauthorised use is disclosed, then consideration should be given as to whether or not action should be taken. If so, then a common first step to take is to consult an IP Lawyer to prepare and send an appropriate cease and desist letter. It’s at this time that prior registration of your IP rights is recognised as being justified and of huge benefit. This is because enforcement of registered rights is usually far more efficient and cost effective than relying on common law actions to enforce your rights.

While compliance with demands is a common response to a cease and desist letter, it’s not always the case. Therefore, you must consider the seriousness of the infringement that has taken place and the harm that it’s doing to your business. If you’re of the view that infringement is clear and it’s causing you financial loss, then you may wish to initiate proceedings to stop the infringement (this is called an injunction) and to obtain an order for compensation (this is called damages).

However, you should always be mindful that court proceedings can be very costly, stressful and distract you from your day to day business.

Unjustified threats

There’s no doubt that a natural response to a person ripping off your unique, creative idea or content is that of anger. However, acting impulsively can be a big mistake and it can turn around and bite you.

There are provisions under both the Australian Copyright Act and the Trade Marks Act that deal with groundless threats of legal action. When threatened with a copyright infringement lawsuit, a person may bring their own legal action to force the person threatening to show justification. Big penalties can apply if justification cannot be shown. Beware!

Final word

The more you try to get ahead in promoting your brand and work, the more you open yourself up to copycats taking advantage of your hard work. However, there are a number of ways to register, protect and enforce your intellectual property. This requires a holistic approach and the implementation of key strategies to know when, and with what force, you should protect your ideas.

Tips

  1. Identify your IP
  2. Register your IP, wherever possible
  3. Take a step back and consider the consequences before asserting your IP rights
  4. Seek legal advice
  5. Avoid publicly announcing that infringement has taken place, unless you are prepared to do something about it

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