intellectual property

intellectual property (known as ‘ip’) is any intangible assets that arise out of creativity or innovation. these creations include inventions, literary and artistic works. intellectual property also extends to any confidential information which is technical or commercial in character.

often new businesses hinge upon new ideas, creations or inventions which are all types of intellectual property, and all businesses have confidential information, which is technical or commercial in nature. these are valuable and core assets of your business. you need to be aware of ip rights so that you can:

• protect your assets

• prevent others from using your ip

• use, licence and transfer ownership of the right to use your ip

• avoid infringing other people’s ip

potential investors (and potential buyers in the future) will want to make sure that you have taken steps to protect your business-critical ip before they invest (or buy).

to transfer ownership of certain ip rights to another business, you can use an assignment of intellectual property. this will ensure that the rights are correctly identified and assigned. to licence rights to use your intellectual property you will need an intellectual property licence (eg a trade mark licence agreement).

what are intellectual property rights?

intellectual property rights (or ‘iprs’) are the exclusive rights of an ip owner or creator in relation to that specific intellectual property. iprs are a catch-all term which described the different rights attached to different types of ip. however, in most cases, iprs refer to the right to use and otherwise exploit (eg sell or license) ip.

trade marks

trade marks are signs which distinguish the goods and services of a particular business (ie its brand). trade marks come in many different forms, the most common being logos, words and slogans. for more information, read trade marks and how to register a trade mark.

patents

a patent protects your inventions so that no one else can copy, manufacture, sell or import them without permission for up to 20 years. the new inventions must be new, involve an inventive step and be capable of industrial application. for more information, read patents.

registered and unregistered design rights

design rights protect how a product looks and prevent others from copying it. unregistered rights automatically arise on the creation of the product. where the design is new and original you can apply for registered design right at the intellectual property office (ipo). for more information, read design rights.

copyright

copyright protects tangible creative works, such as novels, art, music and maps. there is no need to register a copyright and they can last up to 70 years after the death of the creator. for more information, read copyright and moral rights for copyright.

protecting valuable and sensitive information should be a priority for any business. if you are going to share business secrets, consider signing a legally binding confidentiality agreement (also known as a 'non-disclosure agreement' or 'nda') before sharing confidential information with another business. depending on your situation, you can use a:

• one-way confidentiality agreement if only one business is sharing information

• two-way nda if two businesses are sharing information

• letter of confidentiality to share information without the formality of a one-way or two-way nda

if an employee creates works embodying intellectual property rights during the course of their employment, those rights will vest in the employer, unless there is an agreement to the contrary. in such an event, the employee’s employment contract should be considered, as there are usually rules detailing how intellectual property is to be handled. for more information, read employees and intellectual property.

regarding overseas ip protection, the government offers comprehensive guidance to help you when doing business abroad. for more information, read protecting intellectual property overseas.

if someone uses your ip without permission, a cease and desist letter for ip infringement will inform the person that they are using your ip without consent and ask them to stop and refrain from using it in future. read cease and desist letters for more information.

you may also consider: 

• coming to an agreement with the person using your ip without your permission (eg by selling or licencing your ip to them) 

• using mediation to reach an agreement 

• bringing a claim to the ipo 

for more information, read remedies for intellectual property right infringement and do not hesitate to ask a lawyer if you have any questions.