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What Is Intellectual Property?

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What Is Intellectual Property?

What is intellectual property?

I received a newsletter recently from a business coach encouraging people to create and enhance their intellectual property. Unfortunately, some of the tips contained in the newsletter, if followed, could have put her clients’ intellectual property at risk. Also, the author seemed to believe (incorrectly) that any ideas you might have amount to intellectual property, which you could monopolise and stop others from using, simply by virtue of the fact that you created it.

As a result of the misconceptions in that newsletter, I thought it would be useful to clarify what intellectual property is, and how it works.

Trade marks.

Trade marks are generally brand names, but also include logos, jingles, catchphrases, three-dimensional shapes, and even smells! Trade marks may be registered or unregistered, however, generally, the first to file a trade mark application has stronger rights, which means that the cheapest and least stressful option, is to file your brand name (which may be the same as your business name) as a trade mark, at the earliest opportunity.

‘Apple’ is an example of a trade mark for computers, and the Apple logo is the image of an apple with a bite taken out of it. The Microsoft jingle is heard each time a computer with a Microsoft operating system is booted up. The shape of the famous Toblerone chocolate is an example of a three-dimensional trade mark.

Registering your trade mark gives you the right to monopolise it, and also gives you a complete defence to an allegation of trade mark infringement. Registered trade mark rights are limited to the country in which you have them registered.

Copyright.

Copyright is an international right. It comes into existence automatically when you create something such as a photograph, drawing, video or written work. For copyright to exist, you must not have copied anybody else’s material.

I once had a client (a large university) who spent millions of dollars creating a course to teach an indigenous language. Once they had completed creating the course, the University called me in and asked how they could protect their copyright in the course. The good news was that copyright exists automatically. The bad news was that their staff had lifted chunks of material from the Internet and incorporated it into the course. No permission had been obtained for the inclusion of such material, which meant that much of the course infringed existing copyright. The University mistakenly believed that all they had to do was acknowledge those sources. They were incorrect, and because so much of the course material ended up being copyright infringement, it was impossible to obtain the consent of all of the copyright owners involved, and they decided to scrap their very expensive program.

Patents.

Patents are a registered right, which protects your invention, provided your invention is new. Patents generally relate to the way that something works. For example, if you invent a new tent peg, your patent attorney will protect the way that the tent peg operates, and your particular version of the tent peg will be one example of that. If somebody else comes up with a different looking tent peg that works the same way, you should still be protected, if your patent attorney has done a good job.

Registered designs.

Designs are registered for new shapes or patterns. For example, designs are often registered for jewellery, furniture, household appliances and any other articles for which someone comes up with a new shape. For example, the famous vacuum cleaner inventor and manufacturer, Dyson, has registered many designs worldwide for various vacuum cleaner shapes.

Trade secrets.

The most famous example of a trade secret is the Coca-Cola recipe, which has allegedly been kept secret for decades. A trade secret is simply keeping information confidential by way of very strict controls on the information. Unfortunately, once the information has been made public, even if such publication was without authority of the owner, the information is no longer considered to be secret, and confidentiality undertakings (for example of employees) are unlikely to be enforceable.

With a trade secret, once the genie has been let out of the bottle, it is not possible to put it back in. Although confidential information is technically intellectual property, in that it is property that is not of a physical nature, it has fallen out of favour, particularly with the ease of obtaining information and hacking into computer systems. After all, if the FBI cannot keep its data secure, what hope do Small Businesses have?

All businesses create intellectual property. Make sure that no one else takes yours.

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