October 24, 2019

Time to steady the IP ship


This article first appeared in the Bay of Plenty Business News.

There seems little doubt that the New Zealand economy is heading for stormy seas.

Headlines like “Slip sliding away” (ANZ New Zealand Business Outlook, 30 September 2019), “Business confidence at lowest level since 2009: NZIER” (Stuff, 1 October 2019) and “World economy signals mounting crisis in manufacturing” (NZ Herald, 2 October 2019) tend to support this view.

So, what, as a business owner, can you do – and should you do – to steady your IP ship for the choppy seas ahead?

You might think that the best thing to do is cut spending and not invest in registering your trade mark, applying for that patent or plant variety right, or sending that cease and desist letter to your competitor.

I would urge you to think otherwise. After all, you can’t expect a ship to survive a storm without robust protection from the elements.

With this in mind, here are my 5 IP-focussed recommendations:

  1. Conduct an intellectual property audit. Identify your IP assets and prioritise them in order of importance to the ongoing survival and profitability of your business.
  2. Identify if your IP assets are protected or not. for example, are your trade marks registered in all the countries you need them to be? Have you applied for that patent to protect your new invention, or that plant variety right on which a substantial part of the future of your business depends?
  3. Identify if your IP assets can be protected, and what you need to do to protect them. For example, contact a trade mark or patent attorney (if you haven’t already) to lodge any applications; organise the catalogue of drawings for your latest product design to facilitate enforcement; put confidentiality agreements in place to guard your trade secrets.
  4. Identify if anyone is infringing your IP rights and stop them. It’s common knowledge that dispute resolution and litigation can be costly; however, the cost of not enforcing your IP rights can be much greater in the long term. Enforcing your rights prevents erosion of those rights.
  5. Be vigilant. Keep your eyes open for new opportunities, and new threats. One day the storm will clear, the seas will calm, and you will be ready to take advantage of sunnier conditions.

Some businesses may choose to implement the above recommendations themselves; some may not. For those who are unsure or need any kind of guidance, I urge you to contact a competent IP attorney.

With a good tail wind, New Zealand will hopefully be through the worst of the storm in the next 12-18 months. A lot will likely depend, however, on what happens with the Impeachment in the West, the Trade War in the East, the Brexit Nonsense in the North and the votes of the New Zealand public in the South come September 2020.

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