Why do I need to protect my businesses intellectual property?

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Identifying and protecting your businesses Intellectual Property (IP) protects some of the most valuable assets of any business. IP rights are important business assets which can be owned, sold or licensed.

When you create something new and innovative, it can be a game changer for your business, and you need to protect it.

What is Intellectual Property?

IP can be a trade mark, design, patent or plant breeder’s right and these forms of IP can all be registered and protected in Australia and overseas through various conventions.

Other forms of IP such as copyright do not need to be registered.

The following is a brief summary of the types of IP relevant to business and what it protects:

  • Trade Mark which protects logos, words, numbers, colours, a phrase, sound, scent, shape, picture, branding including combinations of these
  • Registered Design which protects the visual appearance of a product is protected, but it does not protect the way it actually works
  • Patent which protects a new invention or process and the way it works etc
  • Plant Breeders Rights which protects a new plant variety
  • Copyright which protects art, broadcasts, computer programs, drawings, literature, movies and music

What about a Business Name?

The business name is what you trade as.

Importantly it identifies who you are to your clients, customers and other businesses.

You must register a business name if you are trading under a name that is not your own.

It is not possible to register a business name that is identical or too similar to the registered name of another Australian business or company.

Importantly, it is crucial to remember that registering a business name will not stop another party which has registered the name as a trade mark from using it.

How is my IP valued?

Valuing your IP will require professional advice and input.

Methods of valuation can vary, but the real value will often only be known when it is sold, transferred, or licensed.

Many businesses IP is a significant asset which sits on the balance sheet.

It is very often an attractive asset which is sought after by a competitor or potential purchaser.

IP is valued for a range of reasons including:

  • a possible sale or acquisition
  • decision making, particularly in relation to determining future investment or development
  • securing financial investment
  • quantification of damages against anyone infringing it
  • meeting accounting standards
  • tax liabilities such as capital gains tax and stamp duty

You must understand when valuing a business’s IP that you need to:

  • understand the source of the IP.
  • determine the key benefits associated with the IP.
  • obtain professional advice to select the most appropriate approach to suit your requirements

What do I do if someone infringes my IP?

First and foremost, you must identify the IP that is being infringed and the party that you believe is infringing it.

It is important to clearly define the IP and the nature of the alleged infringement.

Often a letter of demand will resolve the matter by requesting the infringing party to cease and desist.

If that is not successful, then it is worth trying to mediate or negotiate a resolution.

The final avenue is instituting proceedings and going to court which can be a costly and very stressful process.

Going to court should be avoided if possible but in a small number of cases it is the only way to protect your IP or defend against an overzealous party who has no right to the IP.

If you are involved in court action you can seek an injunction to stop the infringement, seeks damages for the loss you suffer or an account for the profits the infringing party made as a result of the infringement.

How can FC Lawyers help protect businesses intellectual property?

Our experienced Business and Corporate Team have acted for hundreds of businesses and advised them on how to register and protect their IP.

Our team can assist with registering and protecting the IP through IP Australia and internationally through the World Intellectual Property Organization.

We have also assisted many clients through the court process to enforce and defend IP rights and infringements.

Contact our team today to discuss your businesses intellectual property needs.

The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, FC Lawyers cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. FC Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. FC Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.


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