Can I protect my business idea?
Yes – and no! The law of intellectual property offers a number of means of protection for original creations of the mind. The catch is that ideas alone aren’t capable of protection – BUT as soon as you reduce those ideas to written form then legal protection is available. Given the law works in this way, it is therefore very important that your idea or concept remains confidential until it is protected, and even after you have proper protection in place, discretion is key.
While ideas are still in the concept phase, protect discussions which incorporate any disclosure of your ideas with any interested parties with obligations of confidentiality under a non-disclosure (or confidentiality) agreement. Strength and detail are key to the success of your confidentiality agreement, and it is advisable to seek professional legal advice in the process. Equally, legal advice from an intellectual property lawyer is highly recommended to assist in any intellectual property registrations (such as trademarks, patents or designs).
Copyright
Copyright protection is free and automatic and applies to the original creation of literary, dramatic, and musical works . Ideas of this nature that have been expressed in writing, and/or with diagrams and charts or other written form would qualify:
- Copyright protects the expression of ideas and information in forms such as writing, music, visual images, broadcasts, sound recording, moving images and computer programs;
- Even though copyright is free and automatic, it is wise to put a copyright notice (©) in an obvious place on your work to remind others that your work is protected and that you are serious about protecting your rights, along with a copyright warning statement;
- Note that there is no system of registration of copyright in Australia under the Copyright Act 1994 (Cth).
Trade marks
Trade marks are used to protect your brand, whether it is your brand name and logo, or distinctive elements of your product or its packaging that set it apart from your competitors.
- A registered trade mark gives your business the right to use your business name or logo to the exclusion of all others;
- A trade mark will not protect the method you have invented; but will ensure customers can associate your business name or logo with your special method or product as all other sellers are prevented from using your mark or creating one materially similar in the market;
A registered trade mark becomes an asset of your business (classified as an intangible on the balance sheet) and can add value to the goodwill of your business, which is especially advantageous in the event of a future business sale.
Patent
If the product or system you have developed to sell in the course of your business is innovative and novel to your industry you may apply to protect this invention by way of patent registration. Once registered, a patent will give you proprietary rights in the invention, which are exclusive and capable of licensing or future sale and also enables commercialisation of the product .
Once you have patent protection you can stop others from manufacturing, using or selling your intervention in Australia without your permission;
- You can licence someone else to manufacture your invention;
- Patent protection lasts for 20 years provided the periodic renewal fees are paid.
- Patent registration is available in other countries which is a good idea if you are considering selling overseas.
Design registration
Design registrations protect the look of your product, which can be one of the greatest assets of your business idea. Registering your design protects against others copying the look of your product, if it has a visual appearance that is both new and distinctive. However, you must apply for design registration before your product goes to market (so it is important that your design remains confidential until you have your registration approved).
- A registered design will protect the shape, configuration, pattern or ornamentation that creates a unique appearance;
- A registered design does not protect how your product feels, what it is made of, or how it works;
- You will need to prepare images and drawings in order to apply for this kind of protection.
Protect your idea through non-disclosure agreements as a trade secret:
- It may be that protecting your business idea by keeping it absolutely secret is going to be necessary, either as an interim measure, or because it does not fit into one of the categories of “idea” above.
- Protection in this manner is known as a trade secret, and intellectual property in the form of methods or recipes is often protected this way (such as the recipe for KFC or the formula for making coca-cola);
- The onus will be on you, and any people that work in your company to keep the secret, (along with anyone else you choose to disclose it to) by way of robust confidentiality provisions in a non-disclosure agreement which stipulate the requirement for perpetual non-disclosure;
- Trade secrets are effective for business ideas for products that are difficult to reverse engineer or replicate;
- Employees should have robust confidentiality obligations included in their employment agreements together with indemnity provisions in your favour.
Non-disclosure agreements for start-ups and/or collaborative collaborations:
A properly prepared confidentiality will prevent the people you are meeting with such as potential investors, co-creators, employees and technology associates from stealing your idea and taking it or using it as their own.
If you would like some help working out the best way to safeguard your business idea and implement intellectual property protection to the maximum extent the law provides, speak to a professional at Sinclair + May, we have experienced intellectual property lawyers who can help.
This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation.
Published Jan 16, 2019
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