Protecting Your Intellectual Property Has Never Been More Important

Intellectual Property, Commercial

minutes reading time

DATE PUBLISHED: April 7, 2020

The focus on securing remote workers as part of the COVID-19 response may be a dangerous distraction from cyber security strikes. Australia must brace for a cyber crime surge as nation-states seek a strategic advantage against preoccupied rivals during the pandemic. This means that more than ever, a strong proactive response must be put in place to protect company’s intellectual property from increased cyber security threats. Companies that may not normally consider themselves targets for nation-state actors should be cautious, as this unprecedented time could potentially make anyone a target.

A company’s intellectual property (IP) may, in many cases, be considered more valuable than its physical assets. This includes trademarks, patents, trade secrets or employee know-how. 

How to keep your IP Safe

The following steps should be considered when creating an effective IP strategy, as highlighted by IP Australia. 

1. Identify your IP

Firstly your company must identify what and where your intellectual property is, that differentiates you from your competitors. This involves prioritising your intellectual property, completing a risk and cost-benefit analysis, creating a map of the company’s assets and labelling valuable IP. This will help to determine which assets are most at risk of being stolen and what information would hurt the company the most if it were lost. All employees of a company should be educated about IP. 

2. Understand your options

You must understand the different types of IP in order to successfully protect your company’s assets. Whether it is a trademark to protect a brand name, or logo, a patent to protect an invention or a design registration to protect a look. 

You should also be aware of your tools to protect IP. This may include software tools available for tracking documents and IP stores, data loss prevention tools, which locate sensitive documents and keep track of how they are being used and by whom, and the option of encrypting IP to reduce the risk of loss.  

3. Confidentiality

A company’s ideas should be kept confidential until they are protected. Non-disclosure agreements (NDA) can be used to prevent any discussion of an idea from being disclosed without your permission. 

4. Registration

You must consider the risks and benefits of registered versus unregistered rights, and use registration to protect your ideas accordingly. 

Courts will generally provide protection for the owner of a registered trademark, which can be used in a global sense to identify an organisation or company, and also separately to identify a product. In a trademark dispute, courts will support unregistered marks and logos, however when up against a statutory registered mark, it can be very difficult for a small business to prove reputational ownership. To this end, obtaining evidence of reputation (required to enforce the rights of an unregistered trademark) can also be costly.

In relation to a patent, a provisional patent application will establish protection, however full protection is not obtained until it has been examined by IP Australia and a grant is issued. 

5. Costs

Methods to reduce the cost of IP must be balanced against the value of proper protection. Companies often fall into a trap of shortcutting protection measures, resulting in the IP not being properly protected.

It is beneficial to develop a trademark strategy to justify the cost of registration, by assessing an economic equation, evaluating the economic value that the ownership of a specific trademark brings the company. This will give the company an idea of the profitability or competitiveness of a service. 

Intellectual property assets that contribute substantially to the value of the business are often held by a separate entity, which grants a licence to the operating entity to use the IP for an appropriate license fee. This is often a preferred structure from a taxation and asset protection point of view. This type of arrangement requires proper documentation, with a termination clause ending the licensing arrangement if the trading entity becomes financially distressed.

6. research your market

You should think globally, and understand the rules regarding the Australian IP system as well as the international IP system. 

You should research the relevant databases to ensure the ideas are new and avoid infringing rights of others. You should also be familiar with the likely consumers, buyers, licensees, investors, manufacturers and distributors.

7. Beware of Infringement

In light of the COVID-19 pandemic, it is incredibly important to develop an infringement strategy and put in place IP insurance to protect against the heightened risk of cyber attacks at this time. If someone infringes your IP, they can erode your market share, and poor-quality imitations can quickly ruin your brand’s reputation. 

How We can help

The importance of quantifying and securing your intellectual property assets cannot be understated.  McInnes Wilson Lawyers has the expertise to assist you at all stages of this process, and can help to reduce the risk of its unauthorised use. 


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