Intellectual Property
We can assist in all areas of Intellectual Property (IP) and Confidential Information, including
- Copyright Infringement Claims and Enforcement
- Drafting, negotiating and advising on Licence Agreements
- Drafting, negotiating and advising on Confidentiality Agreements (including NDAs)
- Misuse of Intellectual Property
- Misuse of Confidential Information
- Trade Mark Disputes and Enforcement
- Patent Disputes and Enforcement
Intellectual Property and Confidential Information are often overlooked and undervalued until a dispute arises over ownership or who can use or disclose the IP or Confidential Information. This covers a number of areas, including Copyright and Trade Marks and can apply to a wide range of material including documentation, software, names, images, website content and so on.
Intellectual Property and Confidential Information are complex areas. Failure to adequately deal with, document or protect IP or Confidential Information can result in an adverse commercial (and economic) outcome. For example, engaging a contractor to create IP without an agreement that transfers ownership of the IP to you will, in almost all cases, result in the contractor owing the IP and you ending up with a non-exclusive licence (of uncertain scope) to use the IP. This often comes as a complete surprise, especially when the subcontractor sells or licenses the same IP to your competitors. Failure to properly deal with information that might have been protected as a trade secret can result in losing the ability to argue that it is a trade secret. This is a critical issue when employees depart and seek to use things that they have learnt while working for you.
Providing someone with IP, or receiving IP from someone, without a written licence agreement almost inevitably leads to a dispute over what can be done with the material and who it can be provided to. If you provide someone with IP without a licence agreement, the law will generally find that they have an implied licence to use that IP. However, the terms of that implied licence are ultimately decided by a court. This means that both the person providing the IP and the person receiving it are left with very little clarity on what can or cannot be done with the IP. This is a critical commercial issue. It is also a critical legal issue because using or disclosing IP in breach of copyright can result in claims for normal damages, punitive damages, account of profits and injunctions preventing use of the IP.
While Copyright infringement can be avoided by independent creation of IP (without recourse to anyone else's IP), a patent gives an absolute monopoly (regardless of how something was created or implemented). There are a very large (and ever growing) number of patents (especially business method patents) which could be infringed, particularly by people who write software. The penalties for infringing a patent are also draconian and include damages, an account of profits and injunctions that prohibit you from using what you created.