In today’s business environment, timing is a critical element of successful business strategy. This is particularly true with regards to managing intellectual property (IP) in an ever-evolving global marketplace, as the effective creation and protection of intellectual property relies on implementing the correct legal measures at the optimal time.
Taking the right steps to create, check and protect intellectual property in early-stage business delivers a plethora of benefits that we will explore below, however, the underlying driver for ensuring you take appropriate steps to protect your IP early-on is to create a solid foundation for sustainable long-term growth.
Why is intellectual property such a crucial component of business?
The intellectual property of a business is one of its most significant and identifiable intangible assets. IP performs a crucial role due to the protection it provides and benefits it delivers. This includes but is not limited to the following:
- Competitive advantage. It helps to set a business apart from its competitors, building trust and consumer loyalty.
- Attract financing. IP rights are important assets on any balance sheet of a business looking to attract capital investments and commercialisation opportunities.
- Bottom line benefits. From reassuring investors to increasing margins, registered IP rights can improve your bottom line.
- Authenticity guarantee. When source and authenticity matters, registered IP can distinguish an offering in different geographical locations.
The importance of intellectual property: a snapshot
| Secure competitive advantages |
| Generate revenue streams |
| Serve as a source of competitive intelligence |
| Facilitate access to financing |
| Attract investors and partners |
| Avoid and mitigate relevant risks |
Whilst intellectual property delivers a multitude of benefits to a business, the truth is that without taking the right steps at the right time – i.e. in early-stage business – there is no guarantee that these protections or benefits will be afforded to your business.
Therefore, it is not ideal to register IP when you “get a chance” or “get around to it” or when it is done in response to a market challenge such as a competitor potentially leveraging your brand, processes or product for their own commercial gain. Instead, securing your IP as early as possible is imperative to protect your business and position it for growth now and into the future.
The importance of intellectual property in early-stage business
A well-considered and proactive IP strategy can help maximise the potential of a business. However, the primary determining factor of whether the IP strategy will be impactful or ineffective with regards to making the most of an organisation’s potential is timing.
Timing will influence:
- The effectiveness of the legal protections filed for;
- The potential value of future commercial opportunities;
- The degree of risk management achieved and risk mitigated; and
- The ability of the business to adapt and grow in an ever-evolving market.
In essence, implementing an IP strategy in early-stage business helps to ensure that IP becomes a value driver rather than a missed opportunity for the business.
In addition, it delivers five significant benefits that help to protect the business and prepare it for long-term success and growth.
What are the main benefits of an IP strategy in early-stage business?
1. Alignment with business objectives and readiness
Timing is a critical factor in the success of an IP strategy because its implementation must align with the organisation’s stage, objectives and openness to change.
For example: implementing an IP strategy during the start-up phase of a business, or at the time of a new project or strategic growth can maximise its impact, as the business is better able to leverage the IP of the moment for competitive advantage, therefore making it the ideal time to register and protect IP.
Conversely, trying to introduce an IP strategy when the business is in ‘survival or protection mode’ due to factors such as challenging market conditions, or intense competitor activity is sub-optimal as the focus for proactive planning is simply non-existent at this point in time.
2. Legal and commercial advantages
Taking the right legal action at the right time is essential for securing, maintaining, and enforcing IP rights.
Much of IP law is structured around the concept of “first possession,” meaning that exclusive rights are typically granted to whoever takes certain qualifying actions first, such as filing a trade mark application or using a trade mark in business.
Therefore, timely trade mark registration is crucial for establishing brand protection in key markets before entering them, as is filing a trade mark as soon as possible to avoid losing the rights to competitors.
3. Risk management and opportunity capture
Implementing an IP strategy in the early stages can help a business plan, capture and protect the outcomes of their innovation.
This proactive approach not only reduces costs and risks associated with IP disputes but also better positions the company to attract investment and generate returns from its registered IP rights. It also lowers the chance of infringement of your trade mark, and of being accused of infringement of a third party’s similar trade mark, which may result in forced re-branding.
Alternatively, delaying or timing your IP strategy poorly can result in missed opportunities, such as failing to secure protection before establishing a brand or competitive advantage in the market or losing out on international IP rights.
4. Strategic flexibility and adaptation
The effectiveness of an IP strategy also depends on the ability to adapt to changing circumstances. When an IP strategy is implemented in early-stage business and regularly monitored, this enables the organisation to adjust its approach in a proactive and timely manner to ensure the IP strategy remains aligned with evolving business needs, as well as market conditions.
This approach is only possible when an IP strategy has been developed in alignment with business objectives and can therefore be used as a proactive planning tool – not when an IP strategy has been created in retrospect or under duress due to external conditions.
5. Implementation and organisational change
Successfully implementing an IP strategy often requires organisational and behavioural change which is why the timing of its introduction is crucial, as poor timing can lead to ineffective adoption and wasted resources.
An IP strategy should be introduced when the organisation is ready and able to commit resources, ensuring the strategy is embraced rather than resisted, with the optimal time proving to be during early-stage business as this is often a time of forward planning, open mindsets and strategic forward planning.
The benefits of optimised IP timing: an overview
Intellectual Property: An Overview
What is intellectual property (IP)?
IP can be defined as a category of intangible assets that cannot be held and do not have physical presence. They are assets formed using human intellect.
Simply put, it is the creations of the minds that work in your business or the exclusive knowledge that exists within the walls of your organisation.
Protecting your IP enables you to earn money or recognition from your inventions or creations whilst also preventing others from making use of this property. This gives you the ability to commercialise your creations.
What are the different types of IP rights?
1. Trade mark
This is a visual cue that identifies your business. It provides a recognisable association with your brand and is distinctive of the goods and services you offer. There are many forms of registrable trade marks including logos, words, letters, numbers, colours and more.
2. Design
Design registration protects the overall appearance of a product. It can protect the design features of both aesthetic and functional articles eg product designs, products with unique appearances, plastic or metal extrusions or key electrical components.
3. Copy right
All ideas that are written down or materialised into a piece of work, from business to house plans, circuit diagrams through to engineering prototype drawings or artistic works, are automatically protected by copyright for the author of the work.
4. Patent
This is an exclusive right granted for any device, substance, method or process, which is new, inventive and useful. It provides protection and longevity in the case of new technology that will apply to a product or process, as it can prevent replicas entering your market space.
Understanding the different types of registrable IP rights is important as it helps you determine which one provides you with the most suitable legal protection and is most aligned to your business needs. Many businesses have a mixed portfolio of IP rights, combining different rights to protect a business’s innovations and ideas.
Who is the owner of the Trade mark?
Who can apply for a trade mark?
- The applicant must be a “legal person”. This can include an individual or incorporated entity
- There can be joint owners of a trade mark – including partners in a Partnership
What can be done for applicants without legal personality?
- It is best to identify one or more applicants that have legal personality however in circumstances such as unincorporated associations, a trust can be used where the trustees hold the trade mark’s application and subsequent registration on trust for the trust beneficiaries or members of the unincorporated association.
- Alternatively, a company limited by guarantee can perform the same function.
What is the most common objection faced at examination?
Objections under Section 44 are one of the most common sources of objection upon examination (which is when IP Australia assesses the application to ensure it fufills legal requirements). They are also one of the most common sources of opposition from third parties.
Section 44 is a bar to registration if the applied for trade mark is too close to a prior mark which covers the same goods or services or closely related goods or services.
However, a significant number of objections under Section 44 can be circumvented, in the proper circumstances, if you have prior use, or honest and concurrent use of your marks with the conflicting mark.
What makes a pair of marks substantially identical or deceptively similar is a complex area of trade mark law as there is a substantial amount of case law and commentary on the question, and many grey areas. Certain “rules of comparison” under s44 have evolved in the case law and we try to navigate those with our clients at the early stages of trade mark development to help prevent our clients from facing objections at the examination stage.
Take the right steps to create, check and protect your IP
Whilst the need for IP in early-stage business is clear, given the constraints many early-stage businesses may face in terms of time or cost, it is often beneficial to gain an initial understanding of what IP you may possess before seeking legal assistance to register IP rights.
At Antcliffe:Scott we have developed a five-step process you can utilise to help identify your own IP before seeking legal guidance. This process is not a replacement for legal advice, merely a supporting tool to help you better understand what intangible assets may need protection. Simply click to download your FREE copy here.
Alternatively, if you or a business you work with needs some IP guidance, feel free to reach out to our team at Antcliffe:Scott. Our in-house IP division can provide you with guidance you need to ensure that your IP rights are managed accordingly, protecting your business now and into the future.
If you need any assistance, please contact the team at Antcliffe Scott.