How to protect your startup's brand, trade secrets and intellectual property

Branding. It’s such an important business decision, but is there value in protecting a brand in the startup stages of operation?

“I’ll think about that once I’ve got things up and running.”

That’s what I hear a lot but the reality is your brand holds incredible potential from the get go, and protecting that early through intellectual property (IP) rights can be critical.

IP rights, like trademarks or patents, are intangible business assets that give exclusive rights to successful applicants. They can be used to build and protect a startup’s brand, which can help turn intangible assets into cash.

Startups can also monetise their IP through licensing, franchising or sale of the business.

Although not owned by a startup, Vegemite’s 2017 purchase by Australian company Bega Cheese demonstrates the value of brands, and how, if treated as an asset, companies can stand to profit.

Vegemite was invented in 1922 and its inventor Cyril Percy Callister saw the potential of protecting his new brand through a trademark application in 1923.

Today, Vegemite is an Australian icon and has generated millions of dollars from sales. Plus generations of Aussies have grown up reciting the ‘happy little Vegemite’ song, further proof of the power of the Vegemite brand.

Cyril is a good example of: if you want to make money from your brand, you first must invest in it.

When starting a business, considering its brand and the role of IP should be a priority.

Your IP strategy should be an integral part of developing your business plan. It is part of understanding the market, understanding the competition and effectively positioning a new product or service.

So it is crucial at this early stage to focus on your IP strategy.

That may not mean protecting all your IP straight away but taking the time to consider what parts of your business should be protected by an IP right and when.

Creating a competitive advantage

By protecting your IP, you’re showing investors you have faith in your startup, demonstrating confidence and an expectation to succeed.

You’re also stopping others from using your ideas or innovations or depreciating your brand. This puts your startup in the best position possible to be rewarded for all the hard work that’s been accomplished.

IP that is protected and used effectively can create a competitive advantage.

Protecting your IP

The best way for startups to protect their IP is to create an IP strategy.

This will be unique to your business as every business is different. The first thing to do is identify your IP and decide if an IP right should be applied for.

There are pros and cons for registering IP so do your research and decide what’s best for you.

There are four IP rights startups should be aware of:

A trademark is your startup’s identity or brand. It distinguishes your goods and services from those of another. It can be a number, word, phrase, sound, smell, shape, logo, picture, aspects of packaging or a combination of these.
A patent protects an invention. That’s any device, substance, method or process that is new, inventive and useful.
A design protects the way a product looks, like its shape, pattern or configuration. This is different to a patent which protects the functional aspects of the product.
Copyright provides protection for people who express ideas and information in certain forms, the most common being books, films, music and artworks. However, it could also include your website content, code base of your tech and even your promotional material.

Patents, trademarks and designs are all registrable in Australia. To protect your IP overseas you will need to register with the IP office in each relevant country or through a multi-country single ‘PCT’ application.

There are other types of IP which don’t need registering and can be used to a startup’s advantage.

One is trade secrets. Almost every business will keep some information as a trade secret. The best known example is the recipe for Coca Cola, which has been a trade secret since 1891.

Startups using trade secrets should consider using non-disclosure agreements when discussing sensitive and confidential information with employees or third parties, to safeguard their IP.

Long-term relationship

Establishing a startup and seeing it grow is a long-term task, but a rewarding one.

Investing in its brand and considering the best way to protect it early is a smart business decision.

From the name on the door, to an innovative process, or the way your product looks, there’s lots that can differentiate you from your competitors, and nurturing that differentiation can give you your competitive advantage.

Patricia Kelly is the director general of IP Australia.

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