Let us start at the beginning; intellectual property is broadly defined as a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, the most well-known types being copyrights, patents, and trademarks.
The process of registration of intellectual property rights is essential in safeguarding the associated rights. Furthermore, it also outlines a framework for obligations to flow from, for example, the payment of royalties and prevents breach.
Not all commercially sensitive ideas or information are registerable as copyrights, patents, or trademarks. However, this does not deter from their importance. In general, whether unregisterable or not registered by choice, the burden to prove ownership of a competing or breached right is often complicated, therefore if possible, should be avoided as such registration when possible is recommended.
With that being said, registration is just one of the moving parts of the machine that aims to safeguard your rights. Several equally essential structures are (without limitation):
- Confidentiality and Non-Disclosure Agreements (commonly referred to as NDAs)
- Restraint of Trade clauses in your Shareholders Agreement, Employment and Contractor Agreements
- Confidentiality and Intellectual Property Right clauses in your Supplier and Independent Contractor Agreements
- Data and Information Security Policies and provisions in various agreements including Supplier Agreements
- Industry-specific practical arrangements aiming to retain absolute control processes that if outsourced carelessly could expose the business
Intellectual property, whether a registered right or not, often comprises ideas and therefore sensitive information, generally not publically available. This means that data protection and security measures are one of the critical considerations not just for reasons to comply with prevailing privacy laws. It is crucial to assess who has access to what degree of sensitivity and to safeguard the process by implementing the structures mentioned above.
Written by Nicolene Schoeman-Louw, Managing Director of SchoemanLaw Inc.