Intellectual Property and Your Business By Lucy Hudson

Whether you are setting up a new business or have an existing business, your intellectual property is a key asset of your business. It’s therefore important to consider what your intellectual property is and how to protect it.

What is intellectual property?

In contrast to the tangible assets of your business such as your computer equipment, offices, machinery and merchandise, your intellectual property (IP) is made up of the intangible assets that are created in your business using intellectual skill and effort. The main types of intellectual property are as follows:

  1. Trade marks
    Your trade marks include the name of your business and any names of your individual products or services. A trade mark can be a word or words, a Logo, a slogan, the ‘get-up’ or ‘look’ of your packaging or branding and in some cases even a sound or a smell!
  2. Original written and visual works
    Another type of intellectual property is any original written and visual content you create for your website, manuals, brochures and other written and visual materials. It can also include dramatic, musical and other works.
  3. Trade Secrets
    A trade secret is something that is secret to your business. For example, it can include a formulation, a business method, client database or a production method.
  4. Designs
    In terms of something that can be protected, a design is the original appearance or shape of a new product.
  5. Inventions
    In terms of something that can be protected, an invention is something new and inventive such as a new and inventive piece of equipment or pharmaceutical formulation.

Why is my intellectual property important to my business?

When people talk about the assets of their business they often think about their physical or tangible assets. However, the intangible assets of a business are just as important and often make up a significant amount of the value of a business.

A trade mark is a particularly valuable asset because it is what distinguishes your business from those of other traders with the same type of business. It is what enables customers and other members of the public to recognise and seek out your business. It’s also the vehicle by which you promote your business and build a reputation and customer loyalty.

Your original written and visual content is important to your business as these are assets that have been created using skill, effort, time and expense and they are what attracts, educates and informs customers about your products and services.

Your trade secrets are important as they protect something that is key to your business, e.g. a secret formulation or production process that makes your product or service unique.

Any designs or inventions that you have are important as these usually involve new products that are an improvement on earlier products in the same category and therefore often attract high demand.

How do I protect my IP?

Given the importance and value of the IP assets of your business, it’s important to take steps to protect these assets. This is important in case you need to enforce your rights but also in case you want to sell or franchise your business as potential buyers often look at whether the intangible assets of a business have been protected.

How you protect your intellectual property will depend on the type of IP involved because some IP can be protected through a registration process and for other types of IP there are other means of protection.

When it comes to your trade mark, it is possible to register it and the reason it’s so important to do so is that it gives you a nationwide monopoly in your trade mark for your particular products and services. Your registration will last for 10 years at which stage you can decide whether or not to renew it for another 10 years. It is also possible to use a New Zealand trade mark registration as the basis for registering your mark overseas. You can use a ™ to indicate your trade mark and an ® if your trade mark is registered.

You can also register a design or patent an invention but in order to do this, the invention or new design must be new and must be kept confidential until your design application or patent is filed.

For some other types of intellectual property, where registration isn’t possible, there are other ways to protect the IP.

For example, as the name suggests, a trade secret must be kept a secret within a business. So, there must be strict procedures and protocols in place within the business to ensure that the relevant information or documents are kept secret.

When it comes to original written and visual works (in websites, manuals, brochures etc), these are protected by copyright. In New Zealand, you can’t register copyright, it is something that automatically subsists in an original written or literary work (as well as some other types of works such as artistic, dramatic and musical works). However, you can indicate that you own the copyright by including a statement with the year it was created and the owner of the copyright e.g. © 2022 ABC Limited. This can act as a deterrent to others looking to copy. It is also important to keep dated copies of your original works so you can prove when you created the work in case anyone copies you.

In addition to the above forms of protection, it’s important to protect your intellectual property in your dealings with others by way of the relevant written agreements. For example, it’s important to have confidentiality or non-disclosure agreements in place if you are collaborating with or sharing your IP with another business. Licence agreements are also important if you are allowing others to use your IP.

If you have any questions about your intellectual property, please feel free to contact the author* for a free chat.

*By Lucy Hudson, Director, Woodhouse IP. Lucy is a New Zealand IP lawyer, Australian Trade Marks Attorney and Trans-Tasman Patent attorney.

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