Protecting your Intellectual Property in a Competitive Marketplace
The success of your business is important and marketing yourself online through your website and social media can be an effective way to help achieve that success. However, marketing yourself online also makes it possible for anyone to copy and use your content.
You need to make sure you can protect your intellectual property.
As you know, here at TM Solicitor we firmly believe that in business, prevention is better than cure. We like to support our clients to use Australian business law as a tool to enable you to protect your Intellectual Property.
How can you do that? Great question!
Here are 3 key things you can do when working with your business lawyer to ensure your intellectual property is protected.
Have the right business documents
We talk about the 3 core documents every small business owner needs in this resource here. We touch on your Business Terms & Conditions, your Website Terms & Conditions, and your Privacy Policy. These documents include a range of legal protections and compliance, as well as ensuring you are managing your clients’ expectations from the outset.
If you are focusing your energies on growing your online presence, then you need to dive deeper into your Website Terms & Conditions to be sure that all of your offerings are adequately reflected in your website's legal documents.
Hint! Don’t copy someone else’s business documents! & leave DIY for Bunnings, not for your legals. You just don’t know if they are suitable for your business, or if they do all the things they are supposed to do – read more on what we have to say about that in this resource.
Be sure your website legal documents are tailored to your business and adequately protect your online business. They need to clearly outline the expectations of visitors to, and users of your website, and they need to provide clear guidance on how your content can be used, modified, shared or repurposed. They should include a disclaimer to limit your liability arising from the use of your website and the material on it, and importantly, they will protect your intellectual property.
2. Protect your Intellectual Property in your legal documents
You work hard in your business and our guess is you are developing new ideas, new content, and new offerings regularly. Whatever you are creating in your business, you need to be clear on what intellectual property you own, and how to protect it.
Do you know right now what intellectual property you have exclusive use over in your business? (If you don’t, you’re not alone)!
This is where a thorough understanding of Australian business law comes in handy.
Intellectual property in Australia can be protected under the Copyright Act 1968 (Cth) and the Trade Marks Act 1995 (Cth).
A trademark protects a name or phrase (ie, your business or brand name, your tag line, or your business logo). You use these assets everywhere when building your brand, so being crystal clear on whether these are protected is important.
There is a formal registration process to apply for a trademark and there are criteria that apply if you are considering applying. If it is important for your business to have exclusive use of a name or phrase, then you ought to be proactive and seek advice from your business lawyer about whether you can apply for a trademark.
When it comes to copyright protection, unlike a trademark you don’t need to apply anywhere to have this protected. Creative and original works automatically attract copyright protection. For example, copyright won’t protect your entire website, but it will protect certain parts of it. If your business produces original content or material, for example, articles, photography, design, or blogs, then this material is protected automatically by copyright laws.
That said if you do publish original material on your website or elsewhere in your business collateral (pdf downloadable, pamphlets, guides etc), be sure you have included a notice of your copyright. For your website, this should be taken care of in your website terms and conditions, in membership or subscription terms if you offer these, and so on.
3. Protect your Intellectual Property when engaging Contractors and Employees
Growing your team is important, and so is protecting your business in the event that a team member leaves and moves on to compete with you using your ideas.
Again, this is where the Australian business law can be a handy tool by offering a range of options for protection when working with contractors and employees. Naturally, you need to have highly tailored, lawyer-drafted agreements for both your contractors (an independent contractor agreement) and your employees (an employment agreement). As a starting point, these agreements need to include clauses that make it clear that all intellectual property (including copyright) and confidential information belongs to the business, and any intellectual property created during their time with your business belongs to the business and may not be used in any way by the team member after they cease employment or engagement with your business.
These are just some of the ways that Australian business law can help you protect your business in a competitive marketplace. To learn more, check out our Australian Law 101 – Guide for Small Business here.