IP can be a bit like treasure in the attic – you might already have some valuable items lying around without realising it.

Follow this exercise by Tim Riley to help identify what IP you already own.

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Because patents and registered designs are special forms of IP that you are unlikely to have just lying around, we will focus on copyright and trademarks.

IP can be a bit like treasure in the attic – you might already have some valuable items lying around without realising it.

Follow this exercise by Tim Riley to help identify what IP you already own.

* * *

Because patents and registered designs are special forms of IP that you are unlikely to have just lying around, we will focus on copyright and trademarks.

Copyright

Following on from the article, let’s start with copyright. Just to refresh your memory, copyright arises spontaneously in any works within the categories I set out in the article. So let’s run through some of them:

Musical works. If you’re a songwriter, then any original songs you have:

• written down on paper
• written in blood on the wall
• or recorded on some kind of device

will have copyright.

The music (expressed as written sheet music or in recorded form) is a musical work. The lyrics are actually a literary work.

Sound recordings. The following will have copyright:

• Recordings you have made of any music (whether your music or someone-else’s)
• Recordings you have made of interviews (for example if you are conducting research)
• Recordings you have made of literary works (everything from recording a poem, short story, or essay you have written to a recording of written instructions for obtaining sponsorship for an event)
• Recordings you have made of dialogue in a film or play

Literary works. Ignoring the obvious, like novels, plays, and poems, the following will also be covered by literary copyright:

• Legal agreements you have drafted, including things like supplier terms and conditions and website terms and conditions
• Manuals or other instructions on how your business operates
• All text on your website
• Lists you have compiled, for example, client lists
• All letters you draft

Artistic works. Some examples that might be applicable are:

• Logos and other graphic depictions of your brand
• Diagrams that you have created
• Photographs (other than professional photographs where copyright is retained by the photographer)
• Graphic designs

Dramatic works. If you are a writer in the film and television industry (or a playwright) then any original works you have created will be copyrighted dramatic works. A scenario for a film or television programme is also a dramatic work.

If you are a choreographer, the dance sequences you have created are all dramatic works.

If you are a drama queen, your whole life is a dramatic work…

Trademarks

Assuming you have not already registered a trademark, it is possible that you have a few unregistered trademarks lying around. The following Q&A should help you to decide what is right for you:

Question:

• How long have you been trading under the business/brand name you currently use? and
• Have you achieved a level of public recognition in your business/brand name (at least amongst the typical consumers of your goods or services)?

Answer

If the answer to these questions is “a long time” and “yes”, then the less at risk you are of someone being able to steal your name. This is because you are protected by the law of “passing off”. There are still benefits in registering a name that you have a well-established connection to, but it’s not so crucial.

Question

• Is your business/brand name a conventionally spelled English or Maori word?
• Does your business name simply describe what you do?

Answer

If your answer to these questions is “yes” then it is likely that IPONZ will reject an application to register the name. For example, you can’t use “Apple” as a trademark for a business selling apples, but you can use it for a business selling computers - well, you could, but it is taken now….

If you don’t spell your brand name conventionally, it may still be registerable, even if it is descriptive. You might get away with “Bunz” for a bakery, but “Buns” would not be accepted.

Question

• Is your business/brand name sufficiently inventive/cute/cool that someone else who hears about it might want to use it?

Answer

If the answer to this question is yes, and the name is not known in the public yet, then you should definitely consider registration to stop anyone else using who might hear of it before you have established recognition in it.

Question

• Do you have close competitors engaged in a similar business to you?

Answer

If your answer is “yes”, then again, it is worth considering registration as a defensive measure.

By now you should have a clearer idea whether your business comprises any potentially valuable intellectual property assets. In exercise 2, we are going to look at what, if anything, you should be doing having identified this IP.