Are You Making Mistakes When It Comes to Protecting Your Intellectual Property?
Every business needs to protect what makes it different and what provides it with its earning power. This includes product designs, trade or service marks and patents in relation to inventions of any kind. These forms of intellectual property can be protected by filing applications with the relevant government authority, but this has to be done correctly or the consequences could be significant. What do you need to remember when it comes to filing new applications?
In Whose Name?
An intellectual property filed with the Australian government can be a significant business asset or a liability waiting to happen. Filings for patent, design or trademark protection always start off in the form of an application, but in whose name do you file? This is often a tripwire for well-meaning business owners who try to file these forms on their own. The validity of the registration may depend on whether or not the applicant is deemed to have a legitimate claim to it. Also, questions may be raised as to whether the applicant has a "genuine" intent to make use of the design or trademark.
Consider a timeline. You may file to protect your intellectual property now when you are doing business as a sole trader, but what will happen when you incorporate the company in a couple of years' time? Will it be deemed that the company is now the owner, or will it be the individual who initially filed the application? If you're involved in a joint-venture and file an application, what will happen in the future if the venture is no longer active?
The Correct Specification
You must also be very careful when preparing the "specification" of the application itself. This is basically a description of your claim and has to be worded very carefully. It cannot be defined too narrowly. In this case, it could be judged that your application is in fact available to a much wider range of situations and is not "protectable" for your particular purpose.
One of the mistakes people make is to define a trade mark in relation to the provision of goods, when in fact they are actually service providers instead. It's very important to file under the correct class as well, because if an error is made here then the application could be unenforceable or invalid.
It is advisable to get an attorney who specialises in intellectual property and commercial law to help you protect what could be one of your most valuable assets