Intellectual Property & Technology

Intellectual Property – An Outline

Intellectual property law is how the law protects the intangible results of business or artistic endeavour. The most common ways in which this is done is through the laws on:

  • patents
  • copyright
  • trade marks; and
  • confidential information

There are also some more specialised or less used ways such as the laws protecting plant varieties, registered designs and electric circuits. All give the author or inventor a monopoly designed to give them the chance to benefit commercially from their work as the reward for doing it and incentive to get them to do it in the first place.

Patents are the only way to protect an idea or invention. The inventor is granted the right to prevent anyone using the idea without his or her permission for twenty years. Patents must be novel and useful.

Patents must be applied for in each country where protection is required although there are ways to apply in certain country groups at the same time.

Although we routinely deal with patents such as in our licensing work, Brookfields' intellectual property team does not assist its clients to apply for patents. This is a very specialised service where the most important skill is a good understanding of the technology concerned. As a result we are happy to refer our clients to a specialist patent attorneys for this work.

Copyright does not protect an idea but instead protects the "expression" of the idea. This means it is quite possible for another person to rewrite a text providing the same information and create a completely different work with its own independent copyright.

The classic copyright material is a written text or a painting or drawing. However, copyright can exist in music, a broadcast, a performance, a photograph, software and in a three dimensional form. In New Zealand the material can range from pure art to the strictly practical or useful.

Copyright attaches automatically to the work when it is created. Each copyright convention country grants copyright to a copyright work created in New Zealand automatically.

Trade Marks can be registered or unregistered. If a particular mark or brand becomes associated in the market place with a business or any of its goods or services, that business may be able to take action against another business wishing to use the same mark or brand in relation to the same goods or services. This is done using the provisions of the Fair Trading Act against "misleading or deceptive conduct" or the common law action of passing off. The only difficulty is that such court action tends to be expensive.

Another option is to register the trade mark. Registration should be possible if the brand is distinctive and not descriptive of the goods or services and no-one else has already registered a similar brand in relation to those goods or services. The advantage of registration is that it greatly simplifies any enforcement proceedings. It is also very useful evidence of your right to the mark and tends to put off potential infringers right from the beginning.

Brookfields offers a complete trade mark registration service.

Confidential Information: Although not strictly speaking an intellectual property right confidential information laws are often used to protect information which is very valuable to its "owner". Business and marketing plans can be protected in this way as well as manufacturing and scientific processes and "know how" which do not qualify for protection in another way such as under patent.

Most seek to protect the confidential information in a confidentiality agreement or by inserting a confidentiality clause into another agreement on the same matter. However, many relationships include an obligation of confidentiality such as the relationship of employer/employee and solicitor/client. In addition, it is even possible to infer an obligation to keep certain information confidential, if the fact that it was confidential was made clear at the time of disclosure.

However, the information must in fact be confidential if it is to be protected. It is not possible to prevent the disclosure of information that is already in the public domain even in a contract. This means that accidental or careless disclosure can destroy the value of the information. Where a business needs to disclose the confidential information to another, such as to an investor or to a potential purchaser of the business, a properly prepared confidentiality agreement is essential.

Examples of where our intellectual property team can assist include:

  • protection of trade marks and copyright
  • all forms of licensing of intellectual property
  • protection of confidential information
  • technology acquisitions
  • the creation of intellectual property through development or research contracts
  • the infringement or ownership of intellectual property

Read more about Intellectual Property.

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