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Protecting Your Business Brand and Employment Issues

Posted By: Thomas Shaw, 7:28pm Thursday 15 January 2009    Print Article

All businesses invest a lot of time and money to create a brand that appeals to their customers and sets them apart from competitors. As a business becomes more successful, the importance of taking steps to avoid brand exploitation from competitors increases. I am not an expert on legal issues and with the number of layoffs and redundancies in the marketplace, we have asked the experts at LawLive to help us on these topics.

Is Your Brand Protected?

The brand of your business is an example of intellectual property (IP), and can be one of your most valuable assets. Thus it is important to secure rights to the brand, and the confidential information which feeds the brand.

There is protection at statute and common law for some types of IP. Some forms include:

Trade marks - most organisations take the step of registering trade marks. Trade mark registration under the Trade Marks Act 1995 (Cth) is the strongest form of protection for a brand.

Copyright - protective measures available under the Copyright Act 1968 (Cth) protects original written works including webpage design and articles.

Restraint of trade - employment contracts can impose restraints on employees to prevent them from using sensitive business information in future employment.

Confidential information - the law of confidentiality helps protect trade secrets and confidential information from being exploited. Protection is limited to information that is genuinely "confidential" or "secret", such as client proposals, customer and price lists, and marketing strategies. It does not extend to know-how that an employee may develop in the course of employment. For that reason, it is useful to include express provisions in the contract of employment identifying and dealing with confidential information.

Can Employees Take Your Brand?

Firstly, it is useful to conduct systematic audits of the IP your business relies upon. You should identify IP and understand the ownership and licensing arrangements in place. Licensing arrangements can provide opportunities for expansion by granting rights to others to use your brand without giving up ownership. Furthermore, you can attach specific conditions on usage such as use on a non-exclusive basis or in a specific region only.

To retain ownership and prevent departing employees from taking your brand, you can enter into a restraint of trade agreement which could limit their freedom to work for a competitor or prevent them from setting up a competing business. However, care must be taken for enforceability of such a restraint depends on whether it meets the test of "reasonableness" in protecting the employer's legitimate business interests. In assessing this, the court will consider:
  • The geographical area of the restraint;
  • The time period of the restraint;
  • The scope of activities which are restrained.
In conclusion, the value of a business is intricately connected to the brand. LawLive provides templates for numerous Trade Mark License Agreements, Confidentiality Agreements and Employment Contracts. Drafting such documents can help avoid brand misrepresentation or theft of confidential information, help develop branding and employment strategies to protect market share and clients and provide opportunities for expansion through licensing.

LawLive helps you minimize your companies risks by getting all the legal documents your business requires. Cut down your legal costs by using LawLive's contracts & documents before seeing your Lawyer. All LawLive's contracts & documents are drafted by leading legal professionals, which ensures the professional quality of our contracts & documents.

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