How to: identify your intellectual property
Welcome to the first “How to” sheet from aRc, which aims to help you understand how to approach different aspects of IP.
Intellectual property (aka “IP”) is commonly misunderstood - many people think I can help them out when they’re buying a house. But the term IP actually relates to property that you create with your mind, rather than physical assets like land. It includes trade marks, copyright, patents, designs, know how and trade secrets. The different forms of IP provide different rights and obligations, and have as different rules for claiming protection.
A broad overview of the four main forms of intellectual property is shown below.
Have you chosen a distinctive name or logo for your goods or services?
Consider applying for a trade mark registration in the country or countries where you market your goods / services - in NZ this is IPONZ. Without a trade mark registration you will be depending on consumer protection legislation to enforce your rights (in NZ this will be under the Fair Trading Act and/or common law tort of passing off).
Use the TM symbol next to your trade mark, but only use the Ⓡ symbol if it is registered e.g. aRc™ or Ⓡ
Have you invented a new or improved product / process?
Talk to a patent attorney about whether or not patent protection is possible - an initial chat will generally be free, but failure to work out your options can be incredible costly.
Avoid disclosing your idea before checking whether a patent is a good option first.
Have you created an original written, artistic or musical work?
Copyright will exist automatically in certain creations that aren’t copied from others.
There’s no system of registration in NZ, and copyright owners may have international rights under the Berne Convention.
Put people on notice of your rights by using watermarks and or statements of your rights e.g. © Rachel Triplow, arcip.co.nz, 2021.
Have you designed an original 2D pattern or 3D shape
Consider applying for a design registration. Also look at potential trade mark rights in the pattern or shape and/or the existence of copyright in sketches or prototypes.
If you want to obtain a design registration, don’t disclose your idea without checking with an IP attorney first.
Is anyone already using similar IP?
Before launching any new idea, brand or product its essential to check first to see whether you’ll be infringing someone else’s IP. At the very least you’ll avoid being sued, but you may even find information that is freely available to use so you can save yourself money and a lot of trial and error.
Using the table above, consider your business - what forms of IP do you have?
Your IP will form a crucial part of your business assets, so its important to identify your IP in order to make sure you’ve taken the right steps to commercialise your rights and stop others using your IP without your consent.