In the first exercise we tried to identify what IP you might already own in your business. Now we are going to look at what, if anything, you should do with that IP, having identified it.

We will deal with the topics in the same order as in the last exercise.

In the first exercise we tried to identify what IP you might already own in your business. Now we are going to look at what, if anything, you should do with that IP, having identified it.

We will deal with the topics in the same order as in the last exercise.

Copyright

Copyright is easily dealt with, because as I have mentioned, it arises automatically by force of law. You don’t have to register anything, and you need only take minimal steps to qualify for it.

But there are some things you can do to strengthen your claim to it and to minimise hassles from third parties.

• If you are planning to write songs or music, register with APRA. APRA is the Australasian Performing Rights Association, and it is exists specifically to administer the public performance rights in music. You may remember from the article my comment that if you own the copyright in a song you can stop people from performing it in public. Well the corollary to that is you can grant people the right to perform your song in public, in exchange for a fee. Because it’s too hard for a songwriter to do deals with every radio and TV station, shop, public square, bar, ship, plane, and musical toilet (they have them in Japan) that plays music, you need someone to it on your behalf.
• Put the © symbol along with your name (or your company name) and the year of creation on all documents you create and that you provide to other people, (including web based documents). This does not give you copyright in the document, but it does serve to notify anyone dealing with the document that copyright is claimed.
• Try and keep a good paper trail of when and where you created the work in question. Sometimes (particularly in the music industry), two or more people claim rights in the same work, and if you can establish that you created the work before the other person could have, then obviously that will help your claim.
• If your business involves the creation of copyrighted works (for example if you are a visual artist or musician), start a written register containing details of works created, including the date of creation.
• Try to put as much detail on paper as you can when sharing ideas and concepts with the outside world. It’s an old adage that there is no copyright in an idea, only in the expression of the idea. What is protected is the form you have written or drawn it – not the concept itself. Also, if you are pitching ideas (say an idea for a TV show to a production company), the more detail you have provided on paper, the easier it is to establish that the show they subsequently made after rejecting your pitch is actually your show.
• If you produce copyrighted works on commission (for example a photographer) then make sure you do so on the basis of a well-written agreement that clearly provides for copyright to remain with you (unless the person commissioning you is paying for a full buy-out).

Trademarks

If, following the Q&A in exercise 1, you think you have a trademark worth registering, the best thing to do is phone a lawyer to discuss (me for instance…).

Although getting legal advice is recommended, it is possible to apply for registration of a trademark yourself. The government IP site has some useful resources explaining how the process works, but by way of an illustration, I will take you through an example.

Let’s say you are a band called “AARRRGGHHH!” (death metal presumably). Here is a summary of the process:

• Go to the IPONZ site, click the tab for “trademarks” and then click on the “search for trademarks” box. This is to ensure that no one else is already using it. Plug in the name and hit “submit query”. Surprisingly, it comes back with “your search returned no result”. The name is yours!
• The rest of the process requires you to become a registered IPONZ user. Let’s assume you have done that. The first step requires you to put in a reference number and a couple of other details to track your application.
• In the next screen you input information about yourself, the applicant.
• You then get to point of inputting the trademark itself. If the trademark is text only, you input it into the appropriate box. If it is a graphic representation, you provide a link to the file (usually GIF or JPEG). There is also space for a written description of the trademark.
• The next step is to put in a description of the goods or services the trademark is being used for, and the relevant class. In trademark law, there is a universally accepted system for classifying goods and services. So you need to choose from this list the class that fits with your business. For our example, we would use class 41 as this is the class that covers musical and entertainment services. And we might describe the services as “provision of live and recorded musical performances”.
• Next you go to a screen where you pay a registration fee then you sit back and wait.
• If IPONZ have any issues with the proposed trademark (for example it’s in the wrong class, or it’s too descriptive) they will set those out in a letter.
• Once all issues are resolved, IPONZ will then accept the trademark for registration. This means that it is then advertised in the trademark journal and a period of 3 months is given for people to object. If someone raises and objection (for example that they actually own the trademark, or it is too similar to theirs) then the objection must be dealt with.
• If no one objects, or the objections are resolved in your favour, IPONZ will then register the trademark and send you a certificate of registration.

Whether or not you register a trademark it is advisable to scan the trademark journal periodically to ensure no one else is applying for registration of your brand name.

I hope that these exercises have helped you to identify IP in your business and work out whether you should be taking any additional steps to protect that IP. Of course, as much as I have tried to simplify it, intellectual property is a relatively complex aspect of law and business. There is a lot of information online, and in particular the IPONZ website has many good resources for a layperson. There is no substitute though for good quality legal advice from a lawyer specialised in this area (but I would say that wouldn’t I….).