IP tips for start-ups: 3 common mistakes and how to avoid them

Starting up your own business is an exciting and frantic time. With so much to think about, don't let intellectual property slip your mind.

IP includes a range of so-called “intangible rights” resulting from intellectual or creative effort, such as patents, designs, trade marks, copyright and confidential information.

For many new start-ups, IP can be one of the company’s most valuable assets. Unfortunately, IP is often poorly understood and badly managed, especially when there are so many other things entrepreneurs need to focus on.

Below are some common mistakes that start-ups make with IP and how to avoid them.

Publicly disclosing your idea too early

When you have a great idea for a new product or process you want to tell everyone about it, but this isn’t always the best plan. Disclosing your idea publicly before getting any advice on whether it can be protected by a patent or design registration could limit or invalidate any subsequent application. For example, posting photographs of a prototype product on social media could potentially bar you from obtaining patent or design protection for the product in the future.

How to avoid this mistake: Get advice from a patent attorney as early as possible. In particular, ask whether your idea can be protected by a patent and/or a design and, if it can, the best filing strategy. We also recommend that you do not disclose your new idea to anyone who has not entered into a confidentiality agreement (NDA) with you.

Failing to do a trade mark search

Failing to conduct a trade mark search prior to choosing a new name for your company, product and/or service can result in having to re-brand or defend litigation by a trade mark owner with prior rights. For example, it is wrong to assume that if a company name is available it is free to adopt and use, as the name could still potentially infringe a registered trade mark owned by another company.

How to avoid this mistake: Select a trade mark that is distinctive, memorable and not descriptive. Conduct availability searches, then file a trade mark application (in Australia and overseas if you will be using the mark elsewhere) before spending significant funds on branding. If you need assistance, get advice from a trade mark attorney.

Breaching someone else’s copyright

Using an image, wording or other copyright work without permission or in breach of licence terms could result in having to withdraw (take down) the work and pay compensation or defend litigation by the copyright owner. For example, if you find a photograph on the internet you may infringe copyright if you use it in your advertising or on your website without permission.

How to avoid this mistake: If you are not sure whether a work is protected by copyright or not, either seek permission (a licence) from the copyright owner or don’t use it. If you seek a licence, make sure you pay any licence fee and read and comply with the licence terms.

Otherwise, use only works that:

you or someone in your business has created;
a third party you engaged has created for you (and assigned or licensed back to you); or
are available for free.