Can Your Competitors Easily Copy What You Have? What Other Rights Can You Depend On?

Now you know that valuable unregistered rights, such as copyright, are available which incur no costs to obtain or maintain, and in which there is no delay in obtaining enforceable protection since they arise automatically. However, they can be significantly more expensive to enforce through the courts. This is because of the burden of proof on the owner to prove that he is the owner of the rights, as in the case of common law trade marks, he needs to prove that he has a reputation in the mark.

The existence of a patent, registered design or registered trade mark, on the other hand, is prima facie proof of ownership. If you rely on unregistered rights (such as trade secrets or copyright), you are more dependent on detailed record-keeping of the development of ideas, original drawings, and assignment of rights from outside contractors, historical commercial records and the like to prove your case. Also in the case of copyright, actual copying needs to be proven to succeed in an infringement action.

Under certain circumstances, you may prefer to keep your know-how or the formula of a composition confidential by not applying for IP rights. This is fine until there is breach of that confidence. Once that information has been disclosed, it is in the public domain and exclusivity is lost forever even if you could take action against that breach. Moreover, for copyright works you cannot prevent the use of such information derived wholly independently by another party. It is also generally more difficult to license the use of such information, as licensees do not have any protection or guarantee of exclusivity.

IP-savvy companies leverage on a sound portfolio of IP rights – deploying both registered and unregistered IP in their business strategies depending on their current situation and future directions. With an identified budget for IP protection, clear directions and understanding as to current & future business plans, you and your IP consultant, should then work out the best mix of rights to meet your needs and fit your budget