Intellectual property (“IP”) is a term used to describe the outcomes of creative and innovative endeavours. It is described as property because it can be owned, sold, transferred or given away. Intellectual Property includes property such as patents, trademarks, copyrights and designs and confidential information.
IP is important to your business as it will often include those things which distinguish your business from other businesses.
If you want to franchise your business it is essential that you protect your IP.
Your name and logo (including slogans, pictures, colour schemes and other things which identify you) are your IP and are obviously important. Your rights ability to prevent others from trading off your name and logo and your reputation rely on your ability to protect them.
There are 2 ways that you can protect your name and logo.
- register your name and/or your logo as a trademark.
If you do this and someone improperly uses your name/logo, you can take action against them for infringement of your trade mark.
A registered Trade Marks will protect you across Australia in the categories in which your trade mark is registered.
- trade under and promote your name/logo
The extent to which you can protect your name/logo by trading under and promoting your name/logo will depend on the amount and extent to which your name/logo is known.
For example if your name/logo are only known in the suburb in which your business is located, then you can only protect your name/logo in this suburb and someone else could start up a business in the next suburb using your name or logo as long as they didn’t promote their business in your suburb.
Registration of a company name, a business name or a domain name does not give you any protection for the registered name.
As you will see registration of a Trade Mark is the best way of protecting your name/logo.
Your original documents and software are also your IP. This would include any original letters, e-mails, articles, manuals timetables, databases and computer programs as well as any original videos.
Except in certain circumstances, copyright protects this IP.
Copyright does not need to be registered to protect you.
Copyright only protects the actual document, video, computer program etc. It does not protect ideas, information or concepts. An idea, concept or information can still be copied unless it is protected in some other way.
Trade secrets and confidential information are also your IP.
You cannot register this IP and unfortunately you can only protect this IP by keeping it secret. The most common way to do this is by reaching agreement with those persons who have access to the information – a confidentiality agreement.
In addition it is desirable that persons who have access, enter into an agreement not to compete with you or to work with anyone that competes with you.
However confidentiality agreements and non compete agreements are only going to be enforceable if they are not an unreasonable restraint of trade.
Considerable thought should therefore be given to drafting of these agreements to ensure that they are both comprehensive and enforceable.