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Intellectual property covers everything from your brand to customer lists. It could be your most valuable asset, so how can you best protect it? Bill Ladas, Special Counsel at King & Wood Mallesons, and Tara Tissott, Legal Counsel at NAB, discuss the options.
Intellectual property (IP) covers everything from inventions and designs to lists of customers. It also covers one of the most valuable of assets, your brand. According to the Australian Bureau of Statistics, even businesses that are actively innovating often overlook the need to protect it – more than 70 per cent of companies with up to 19 employees do nothing at all.
“When your IP is protected and used in the right way, your customers can be confident that the product or service they’re paying for and receiving is of a consistent quality, authentic and from a trusted source. Importantly, customers should be able to trust your brand,” says Tara Tissott, Legal Counsel, Governance Corporate & Enterprise Services, at NAB. “You may also be in a position to generate income by licensing your IP to third parties and receiving fees or royalties in exchange. On the other hand, if your IP isn’t adequately protected, someone else may use and benefit from it, jeopardising the value of your IP and your time and financial investment in it.”
“The traditional IP tools play a crucial role in creating and preserving market share,” says Bill Ladas Special Counsel at global law firm King & Wood Mallesons. “They are often confused or discussed interchangeably, andthe categories can sometimes overlap, but it’s important to understand the differences.”
“There are additional specialist tools such as protection for circuit layouts and Plant Breeders’ Rights,” Ladas continues. “Registered IP rights can also be very important when the value of a business is being reviewed ahead of a sale or merger. And additional consumer safeguards are layered on top of these protections – for example, the Australian Consumer Law prohibits misleading and deceptive conduct.”
The online environment has made it much easier for would-be infringers to access IP on a global scale.
“IP rights are generally jurisdiction-based so protection could be effective in Australia but not overseas,” says Tissott. “Whilst there is some international harmonisation of IP laws, the IP system – whether on home territory or overseas – can be difficult to navigate. Even those familiar with the system may find IP laws difficult to enforce.”
It can take a while for the law to catch up with technology.
“This lag will no doubt continue into the future but, in the meantime, even new expressions of IP can often be captured by traditional protection,” says Ladas.
Well-designed contracts can also help to protect digital information.
“If you’re storing data in the cloud, check the agreement you have with the provider to see who owns the information you upload or ideally, know your position before you decide on a cloud service provider,” says Tissott. “You should ensure that your employee and contractor agreements spell out IP ownership and consider putting confidentiality agreements in place with contractors and parties you speak to about your new ideas.”
For someone with no experience of protecting IP, the process can appear overwhelming – and it can be hard to know where to start.
“User friendly information is available from IP Australia, the Australian Copyright Council and from www.business.gov.au,” says Tissott. “But IP is a complex area of law with its application varying according to the industry you’re in, your risk profile and how much money you’re able to invest in protection. Specialist lawyers can help you to identify your key IP and tailor your protection, so engaging an IP professional may be a worthwhile investment.”
A specialist can also help you to enforce the protection.
“You need to be proactive and know if your IP is being infringed,” says Tissott. “That means keeping a close eye on your competitors, the marketplace and the online environment.”
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