Intellectual property lawyers do what the name suggests and register, protect and fight for your rights regarding your intellectual property (IP). To fully understand what an IP Lawyer does, we must first define what “intellectual property” actually is.
Starting at the very beginning, ownership of property is essentially a bundle of rights, a relationship between a person and the property. For example, I would argue that the main right of ownership of property is the right to exclude all others from that property. We see this every day, if someone owns an MP3 player and they are listening to it on the street, you have no right to go and take it, in fact you would land yourself in very hot water if you did. The same for real property, if you own land you have the right to exclude all others from your land. There are of course obvious exceptions to these rules, right of entry to police for example amongst others. These examples confer rights in personal property and in real property, but the same can be said for intellectual property.
Intellectual property (IP) gives its name to property from your mind: inventions, literary and artistic works, and symbols, names, images, and designs used in business. A brand is a good example of this, as any business owner will tell you, a good name or a good reputation for products or services in a competitive market is an incredibly hard process. It involves blood, sweat and tears, a lot of hard work and time away from your loved ones. This “good will” is intertwined and bound together within your brand, the thing that separates you in the marketplace from all others, essentially you are your brand and your brand is your business. This property needs protecting and this is where an intellectual property lawyer can help you. Intellectual property law is separated into different categories;
Trademarks are a symbol, word, or words used as representing a company or product. We all know good examples of brands which are successful in the marketplace. Other manufacturers and strictly forbidden by law to use those words on their products because the brand you are thinking of is probably a registered trademark and as such have a lot invested in them. It would be unconscionable for another manufacturer to be able to exploit the word for its own gain.
Patents are defined as any device, substance, method or process that is new, inventive, and useful. An invention doesn’t have to be totally unique but must involve an inventive step and be able to be made or used in an industry. An inventive step means that the invention is not obvious to anyone with knowledge and experience in that particular business. Big soft drink manufacturers and fast food businesses own patents on the equipment used at their factories, which was designed by them. This confers the exclusive right to use, lease or sell that property as they wish and also gives them the right to bring an action against anyone who uses this property without permission.
As I have hopefully explained above, ownership of property is a bundle of rights, one of which is the right to exclusively modify, copy, reproduce or license to modify, copy or reproduce the property. Books, music, poems, movies and others, if they are going to be exploited for commercial gain, would need to be protected by copyright. Soft drink manufacturers own copyrights of the shape of their bottles, tv commercials, theme songs and anything else that was created using creative effort.
Trade secrets are the secrets in a business which makes that business different from the rest of the market and makes your product unique. “The Colonials secret recipe” for fried chicken or the recipes for soft drink are examples of trade secrets. For the law to recognise a trade secret as intellectual property there are certain steps or precautions which must be taken. The secret must be out of view, behind locked doors, limited amount of people who know, password protection and essentially any other reasonable steps to ensure that the secret is kept secret. This ensures that a breach of a trade secret is a true and reasonable breach of confidentiality rather than more common knowledge.
A design refers to the shape, pattern or configuration which gives a product its unique appearance, and must be new and distinctive. For example, a fashion designer would seek to protect the rights of their work to enable them to exploit their design in the marketplace or to license their design to others.
Do you need intellectual property lawyers?
Whatever business you are in the need to protect your intellectual property is very important. If you are starting a business you will need to ensure that before you spend money of logos and branding that you are not infringing any rights of others. Then, after you check you should ensure that your rights are protected against all others. If you are buying a business then you need so ensure that you get the full transfer of the IP as well as the tangible property. You don’t want to buy a business from an unscrupulous vendor who retains the rights to the brand, copyright or trade secrets. If you are selling a business you need to ensure that the IP is not transferred incorrectly which could lead to costly litigation down the track. If you are looking to franchise your business then you need to protect your brand and trade secrets from franchisees who could try to use your good will against you. If you are looking to expand overseas, even if it is to your nearest neighbour, the rights will need protection in that country and every country to do business in.
A good intellectual property lawyer will know all the complexities involving your IP and be able to offer you the best advice on how to protect your intangible assets.