I've got a good feeling about 2014. I don't know why, I
Maybe it's the psychological effect of leaving 2013 –
a jam-packed year – behind, or maybe it's because there
are no odd numbers in '2014', just nice, even ones. I
cannot say. All I know is that before us lie twelve months of
opportunity. In the immortal words of Kyle Reese
('Terminator', 1984) "...the future is not set...
there is no such thing as Fate, but what we make for ourselves by
our own will".
Right about now you might be thinking "What's this guy
on? I thought this was a serious business
publication1?" (or something less polite to the
same effect). And you'd be right. So let's get down to
Regardless of what size or type of business you run, you need to
protect your intellectual property (IP)2. For those of
you unfamiliar with but interested in how you can do this in 2014
the following is a quick 2 step guide to whet your appetite.
Step 1: identify your IP rights
There are two main types of IP rights:
Registered: patents, designs, plant varieties and trade marks
(but not domain names or company names);
Unregistered: includes copyright, trade secrets, confidential
information and unregistered trade marks.
Common to both types of IP is the need for a business to
maintain comprehensive and accurate records of its IP in case it
ever wants to sell the IP rights or enforce them.
Step 2: protect your IP rights
Where an IP right can be registered registration is the best way
(and sometimes, as in the case of patents, the only way) to protect
that right. Registration is the best way because it is the
'cleanest' and easiest way of demonstrating an IP right. (I
say that not as an IP lawyer whose firm derives revenue by helping
clients obtain registered rights, but because it is a fact.)
Registration gives you an exclusive legal right in the country
where the IP is registered to:
prevent others from using your IP without your consent or
prevent others from reproducing your product or technology
without your consent or authorisation;
sell (transfer or assign) your IP right (as IP rights are
personal property); and
license your IP to another (perhaps exclusively), generate
passive income streams through royalties and licence3
fees, and create potential franchise opportunities.
Registration can also ensure global consistency of brand
presentation and act as a deterrent to competitors who may have
been travelling on the same development path as you but, because of
your registration, cannot continue on that path for risk of
infringing your rights.
The four benefits above can be achieved with unregistered
rights; however, the process of identifying unregistered rights and
scope of those rights is often fraught with difficulty due to the
need to produce significant evidence to prove the right.
Furthermore, disputes involving unregistered rights invariably
result in lengthy and expensive court proceedings because of their
often 'messy' nature.
I said at the start of this article that before us lie twelve
months of opportunity. I believe it. There will be opportunities to
learn, to improve, to grow, to develop, and to succeed. On this
note, and in wishing you a prosperous 2014, I offer the words of
Henry Ford: "If everyone is moving forward together, then
success takes care of itself".
1 At some point a patent application
is published, meaning its contents are available for anyone to
read. In New Zealand publication occurs when a patent application
is accepted. However, in most countries publication occurs
18 months after the application is filed. 2 Refers to the ownership of an intangible thing
- the innovative idea behind a new technology, product, process,
design or plant variety, and other intangibles such as trade
secrets, goodwill and reputation, and trade marks. Although
intangible, the law recognises intellectual property as a form of
property which can be sold, licensed, damaged or
trespassed upon. Intellectual property encompasses
patents, designs, trade marks and copyright. 3 A legal document granting another party
permission to use an invention that is the subject of a
granted patent. The details of a licence depend on the
arrangement agreed by the parties, but normally a licence fee
and/or royalties will be payable.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
James & Wells Intellectual Property, three time winner
of the New Zealand Intellectual Property Laws Award and first IP
firm in the world to achieve CEMARS® certification.
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