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Management of Intellectual Property- Finding your Forgotten Business Asset.

Guest post by: Stuart Ayling

Article Overview: For a service business it is particularly important to identify and manage Intellectual Property (IP). This article explains what IP is and how you can use it to benefit your business.

Management of Intellectual Property- Finding your Forgotten Business Asset.

For a service business it is particularly important to identify and manage Intellectual Property (IP). This article explains what IP is and how you can use it to benefit your business.

Many people get confused about IP. In simple terms, Intellectual Property represents the property of your mind or intellect. In business terms, this also means your proprietary knowledge.

There are different types of IP, and a strategy should be developed to identify and protect relevant IP for your business.

The seven types of IP are:

1. Patents for new or improved products or processes.

2. Trade Marks for letters, words, phrases, sounds, smells, shapes, logos, pictures, aspects of packaging or a combination of these.

3. Designs for the shape or appearance of manufactured goods.

4. Copyright for original material in literary, artistic, dramatic or musical works, films, broadcasts, multimedia and computer programs.

5. Circuit layout rights for the three-dimensional configuration of electronic circuits in integrated circuit products or layout designs.

6. Plant breeder's rights for new plant varieties.

7. Confidentiality/trade secrets including know-how and other confidential or proprietary information.

Copyright is Automatic
The only type of IP that applies automatically is Copyright. In Australia the Copyright Act provides rule on how Copyright applies. For example, with written works Copyright applies for 70 years from the year of the authors death.

Whilst in Australia you don’t need to include a copyright notice in your works, it can help to establish your rights in overseas countries and it may deter other people from using it incorrectly.

Trade Marks
A common IP issue for service businesses is the Trade Mark. The most obvious potential Trade Mark is the company name and logo.

For service businesses that rely on special services they have developed, or systems of delivering services (such as a proprietary training program or consultancy service), the name of the service may be suitable to be Trade Marked.

In this way the business can ensure the work they put into building a recognised name in their market does not get copied, abused, or stolen by another business.

Company and Business Names
Importantly it must be remembered that registering a company or business name does not give you ownership of the trade mark. The trade mark process is the source of IP ownership, not the business name registration process.

When you apply to register IP you will need to define exactly what it is you are protecting, select a class or multiple classes (categories) in which you want that protection to apply, and establish when you first starting using that IP.

This is where the services of an IP lawyer can be helpful. To ensure you get the protection you want from your IP it can be invaluable to engage an IP expert who knows the ‘inside’ of the IP approval process. There are often details that are easy to overlook that can have a dramatic impact on the protection you get from your IP.

Protecting your IP often comes down to having the correct procedures in place for sharing information. For example:

Do you keep a register of your various types of IP?
Do your employees have a non-disclosure clause as part of their employment contract?
Do you have contractors sign confidentiality agreement when they are handling your sensitive information?
Do you provide guidelines for how other parties can use your logo?
Do you clearly mark your IP so others can recognise it.

Companies who develop something unique can benefit for many years if they can manage their IP correctly. Look at Coca Cola and KFC (Kentucky Fried Chicken), hiding their secret recipes for decades and maintaining their unique market position.

Microsoft and many other software companies have created various forms of IP such as copyright, trade marks, patented processes, and trade secrets. They often use licensing agreements to control how other parties use that IP.

Pay attention to identifying and protecting your IP to maximise your business success.

For further information on Intellectual Property in Australia visit the government website at IP Australia.

Related Articles
  The importance of Intellectual Property when buying or selling a business
  Intellectual Property Protection Minimum Standards
  Intellectual Property Rights - The Chinese Challenge
  Federal Requirements
  How to structure your business to protect your intellectual property

Article Tags: broadcasts, business terms, circuit layout rights, computer programs, confidentiality, copyright act, copyright notice, delivering services, electronic circuits, improved products, integrated circuit, intellect, layout designs, overseas countries, proprietary information, proprietary knowledge, service business, service businesses, shapes, trade secrets



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Re: Template of Service Agreement/Contractor Agreement - Shimmy- I, too, would be happy to share my template contract for a service provider. But beware, a template agreement may not be sufficient to properly address your needs. Some key differences between Employees and Service Providers: 1. Tax Status. Employers are responsible for withholding tax on employee's earnings. Independent Contractors are responsible for reporting their income/taxes. There is a significant reporting burden and liability associated with this. 2. Confidentiality/Intellectual Property. Often times, employee handbooks will specify an employees confidentiality obligations and many states impute a duty of loyalty. Contractors are under no such obligations absent a written agreement. Same thing for IP/Creative works. The copyright Act draws a sharp and significant distinction between employees and contractors when it comes to ownership of creative works. 3. Liability for tortious acts. Generally an employer is liable for the tortious acts of its employees under the theory of respondeat superior. An entity hiring a contractor may/may not be liable, but without a written agreement for the contractor to indemnify/defend the hiring entity, their may be little recourse against the contractor. There are many other subtle differences too numerous to mention. I hope you find this helpful.


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