Intellectual Property – Protection

14/07/2018 2:02 PM

`IP` is one of those buzz words that constantly gets used in conversation, with everyone agreeing that their IP is valuable and must be protected – but what is it really? And how is it relevant to your organisation?

Intellectual Property (IP) is a broad term for intangible property rights, which afford protection to creative, inventive and intellectual effort. The types of IP that most people are familiar with are trade marks, copyright, patents, designs and confidential information, all of which are the product of intellectual activity. Because inventive thought is not tangible it is often more vulnerable to attack and misuse than the more traditional kinds of ‘property’ such as land and goods. IP laws in Australia, as in many other countries, are not absolute, but they go a long way to protect the exclusive rights of creators, which in turn provides incentive for individuals to develop and share information.

Despite all of this, why would an organisation need to register a trade mark? The answer is easy – to protect itself and one of its most valuable assets – its reputation. A registered trade mark is key to protecting an organisation’s name.

Is a trade mark really necessary if an organisation already has a business, company and domain name registered? YES. Although the latter are useful business tools and often legal requirements, they do not offer genuine protection of intellectual property rights – only trade marks offer tangible, enforceable proprietary rights in relation to a name. Registration of a trade mark gives the owner exclusive use of the mark for the goods and services for which it was registered, and using the mark with the exclusive ® symbol warns others that the mark is protected.

While there is no legal requirement to register a trade mark, failure to do so could result in an organisation losing its rights to trade under a name deservedly belonging to it, or having its rights and reputation diluted. Take the situation of a charity that has operated for 20 years. It has built up a first rate name and reputation but may find that without a registered trade mark, another organisation could commence operating under a very similar name in the same or a similar space. Or, what if a disgruntled employee surreptitiously applied for a trade mark of the organisation’s name, forcing it to `buy back` the right to operate under its own name? These scenarios are not unusual – but they are easily avoidable.

Applying for and registering a trade mark is a relatively inexpensive and simple process that offers real protection to its owner. Once registered, a trade mark gives the owner the exclusive right to use the trade mark and to authorise others to use the mark. While common law rights are generated through the use of a name without registration, having a mark registered makes protecting it and enforcing rights much easier and potentially saves a great deal of time, money and uncertainty down the line.

Registration is based on an international system of ‘classes’, with 45 classes covering innumerable goods and services. For example, charitable services can be covered, as can sales, marketing and advertising, not to mention clothing and promotional goods. An organisation simply needs to think about how it uses its name and where it needs protection – is it only being used for the name of the organisation? Or is it also on brochures, publications and in advertising? Once a complete list is established the mark can be applied for. Upon registration, the organisation is able to confidently use the mark in relation to any of the advertised goods and/or services, and know that it can enforce its rights, preventing others from using the same or similar name for those goods/services covered by the mark. In a society where image and reputation is vital to the success of any business or organisation, a registered trade mark is the surest way to protect the status and character of your organisation – you have worked hard to develop your name, make sure it stays safe.

For more information about trade mark rights please contact Nicole Stevens-Warton on 03 96083 2264 or or Anna Smits on 03 9608 2103 or at Cornwall Stodart Lawyers

IMPORTANT Disclaimer: This is not legal or other professional advice. Readers should not act solely on the basis of the material contained in this article. Articles are general comments only and do not constitute or convey advice per se. Formal professional advice should be obtained before applying information in this article to particular circumstances. Enterprise Care is not in any way responsible for any loss or liability by anyone acting on the basis of information in this article or for any error in or omission from it.© Copyright 2014