Similar to any other assets where the value is tangible, intellectual property produces tangible value that often accumulate over time and appreciates in value. Therefore, the intellectual property of a business or a person is a valuable asset.
This is common amongst new or emerging businesses where either the business or its name accumulates goodwill and reputation and recognition.
Trademarks are normally associated with the name of a business or any other name that is associated with the business. Trademarks could also apply to phrases or logos or any other unique feature which can be recognised by the public.
The benefit of having a registered trademark is to prevent an event where a competing business deceptively and misleadingly presents itself as your business or an associate of your business. As a result, that competing business may end up obtaining the loyal customers of your business. This is known as “passing off”.
This is dealt with by the Australian Consumer Law (ACL) which protects against misleading and deceptive conduct. It is also important to consider the timing of registering a trademark. The full protection begins on the date that a trademark is registered.
Copyrights are uniquely different from trademarks. Copyrights normally apply to anything that is produced by a person. This may include the drawings of an architect or engineer, or the creative writing of an artist, or an online publication, or any other thing of such a nature.
Copyrights do not need to be registered in order for those protection to take place. Any creative writing or drawing or publication of such nature automatically attracts with it the copyright protection. Only the conduct or the words of the creator would waive those rights, otherwise those copyrights are always presumed to be in place.
For instance, an architect is engaged to produce a product and provides their service (wholly or partially complete), however the customer later decides that they do not wish to proceed with the product. At a later date, the architect finds out that his/her product has been used nonetheless. The architect may have a right to sue his/her previous client for using that creation without the architect’s consent. Equally, the same thing applies in other instances where other creation of either a design or any other writing takes place.
A patent is normally involved where a structure, or a formula, or a system (which is unique) is created. The patent prevents others from using that formula or structural system for a period of time. However, in order for the parent to be registered, that structure or formula or system must be published. The registered patent prevents others, by way of restriction, from using whatever is protected under the registered patent.
The fact that the patented structure or formula or system will be published upon registration deters some businesses from seeking protection through a patent. The reason is, some businesses prefer to keep their unique system or formula a secret. For instance, the famous secret recipe of Kentucky Fried Chicken is not patented. It is simply kept as a secret. The reason is, if it were to be patented, the recipe must be published. It would be difficult to restrict other businesses from using the patented recipe. However, a larger company such as Microsoft can have a better chance of protecting its patent against an equally large company such as Apple.
Is registration necessary?
The most common breach of intellectual property is a breach of a trademark. Although registration of a trademark provides additional protection, an unregistered trademark may still have some protections under the common law. For example, there is a common law rule that prevents competing businesses from passing off as other businesses. Also, the Australian consumer law protects unregistered trademarks from misleading and deceptive conduct. However, the protection itself is not as paramount as a protection that is warranted and granted to a trademark that is registered.
What if someone has breached an intellectual property?
If someone has contravened your intellectual property, the first step to be taken is to write a letter to the contravening party requesting an immediate stop from continuing the breach and contravention of the intellectual property.
Irrespective of whether or not the other party stops using or breaching your intellectual property, you may sue that party for damages as a result of that breach. The amount of damage sustained by the contravention may be determined by an expert who is capable of calculating the economic loss sustained as a result of the breach.
In this day and age, intellectual property has become a valuable asset, and if left unprotected then the hard work of an individual or business may vanish in the future.
Therefore, it is paramount that both a business or a personal intellectual property is protected.
What should I do?
If you are operating a business, or restructuring, or entering a business venture or an investment, we are able to assist you by forming the best structure for you the suits your needs, and providing you with all the protection that you may need over the years.
If you require our assistance or have any questions, contact our office for a consultation.