I've got a good feeling about 2014. I don't know why, I just do.

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 business.

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:

  1. Registered: patents, designs, plant varieties and trade marks (but not domain names or company names);
  2. 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:

  1. prevent others from using your IP without your consent or authorisation;
  2. prevent others from reproducing your product or technology without your consent or authorisation;
  3. sell (transfer or assign) your IP right (as IP rights are personal property); and
  4. 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.