Relationships with your Competitors and the Marketplace - Protect & Profit from your Ideas

Posted by Malcolm Campbell on 31 August 2016
Relationships with your Competitors and the Marketplace - Protect & Profit from your Ideas

Whilst our legal system provides a myriad of intellectual property rights for businesses and individuals to protect their brands, designs, methods of manufacture and their artistic works, put simply there is no legal property in an ‘idea’.

A patent is a right that is granted for any device, substance, method or process that is new, inventive and useful. A patent is a legally enforceable right to commercially exploit the invention for the life of the patent.

A design is what makes a product look the way it does. It includes shape, configuration, pattern and ornamentation. When applied to a product, it gives it a unique appearance.  Design registration aims to protect designs that have an industrial or commercial use.

Trade mark registration provides the owner with legal rights to exclusive use, and/or control of the use of the trade mark for the goods or services for which it is registered. A trade mark has value as an asset so long as it used by the owner for the goods or services registered. The owner of a trade mark can force a third party using a similar mark to theirs to cease using the trade mark.

Copyright on the other hand automatically gives you rights to the protection of your original works of art, literature, music, films, broadcasts and certain parts of computer programs against copying and certain other uses. It protects the original expression of ideas, not the ideas themselves.

While making copies of copyright material can infringe exclusive rights, a certain amount of copying is allowed under the fair dealing provisions of the legislation. Further, copyright doesn’t protect you against independent creation of a similar work. Often legal proceedings against copyright infringement are complicated by the fact that a number of different copyrights may exist in some works.

So how do you protect your idea(s) and the ultimately profit from them. Simple – keep them confidential. That’s not to say you shouldn’t do anything with them – far from it. If you have what you think is a commercially sensitive (and hopefully profitable) idea, which cannot be properly protected by traditional forms of IP, it is essential that you do not share it with anyone (except your lawyer in the course of obtaining legal advice) without them first signing a well drafted confidentiality agreement (also referred to as a Non-Disclosure Agreement – NDA). A properly drafted NDA executed by the most relevant parties (note: getting directors or natural people – not just companies to sign is essential for meaningful enforcement) creates legal rights in an idea or information that would not otherwise have existed had the document not been signed.

So once you have shared your ideas with other like minded business people (after they have signed a well crafted NDA) and everyone agrees it’s a fantastic idea that has great potential, what else can be done to earn revenue from your great idea (or for that matter your patent, design, trade mark, or copyright work)?

Well as a one off you could sell it. But thereafter someone else controls the IP. Sometimes the better way to earn greater revenue over a longer period is to grant others the right to use your idea (or reproduce your other IP). Think software – you never buy the software itself – rather you acquire a right to use it for a limited purpose for a limited period of time. You can do the same for your idea or other IP. Rather than giving the idea away you can allow others to use the idea (without them disclosing it) for a fee. The right to use can be exclusive, non-exclusive or limited in some manner. For example licencing the confidential use of ideas is the cornerstone of many franchises.

The key however to the success of a business model that involves licencing of ideas is to never disclose the idea without first having the idea secured by way of a confidentiality agreement or NDA. Every businesses IP strategy should include the use of NDAs.

We have years of experience in helping businesses manage their IP strategy and focusing them on acquiring the right type of IP assets and leveraging the most value from those IP assets in an efficient and cost effective manner.

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