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Consultants provide expert advice to other businesses to help them thrive. However, as a consultant, you need to ensure that you take steps to protect your intellectual property so that your business can thrive too. There are a number of intellectual property tools available to you to establish your business and brand. It is important to have a unique brand to be recognised by the many individuals and groups you work with. 

This article will outline the intellectual property you may encounter as a consultant and how to use it to benefit your business.

Trade Marks

You can use a trade mark when you want to distinguish your business from others. Trade marks will only be valid if they are original and not similar to existing trade marks, so you can be sure that your business stands out with a trade mark. You can trade mark anything that identifies your business as your own. This includes, but is not limited to:

  • logos; 
  • words; 
  • sounds;
  • smells; and 
  • colours.

 When you own a trade mark, you gain:

  • exclusive rights to use your intellectual property in any way you choose;
  • the power to refuse usage to any other party; and 
  • legal protection.

There are two kinds of trade mark in New Zealand; registered and unregistered trade marks.

The Intellectual Property Office of New Zealand (IPONZ) must approve registered trade marks. They will approve your trade mark if it is original and unique. Once IPONZ approves your application, you can label your trade mark with the ® symbol. 

If you choose not to register your trade mark or have not completed your application, you may have an unregistered trade mark. An unregistered trade mark is similar to a registered trade mark, except that it has to meet certain requirements to gain the same rights and protections. To be protected, an unregistered trade mark must have a strong and traceable reputation in your specific market. Once you have identified your trade mark as an unregistered trade mark, you can label it with the ™ symbol. 

Protecting Your Business Name

Another way to protect your business is to register your company name. As a consultant, this is an important step, as it allows your consulting business to have a unique and memorable name. You can do this through the Companies Register run by the New Zealand Companies Office (NZCO). You can check if your business name is similar to anyone else’s by using the search tool provided by NZCO.

Registering your business’ name guarantees that your company is the only company using your name. If you find that someone else is using your name after you register it, you may be able to take legal action.

Who Owns My Business’ Intellectual Property?

Consulting is a business where you produce your own intellectual property for your branding and produce intellectual property for your clients’ businesses. Therefore, as a consultant, it can be hard to know what intellectual property you have ownership rights over. 

A general rule of thumb is that anything that you have created while employed by a client for the purpose of that employment belongs to your client. However, you own intellectual property that you have produced for your business or to identify your business.

There may be situations where you have joint ownership of intellectual property. This means that you and your client both have ownership rights. Joint ownership can be tricky to navigate, so it is best to agree on who owns any intellectual property created during the course of employment before you start working for a client.

Licence Agreements

As a consultant, you may allow a client to use the intellectual property you have previously produced. In this case, you may want to enter a licence agreement. A licence agreement permits one party to use the intellectual property of another without changing the ownership status. A licence agreement is a legal contract, and it requires careful consideration. You may want legal guidance from a lawyer when licencing your intellectual property to your clients.

You may also agree to enter a licence agreement with clients before commencing work. This may be a contract where you retain the rights to the intellectual property you create for them while allowing them to use your work in their business.

Assignments

Assignments are also legal contracts. You can use an assignment if you want to sell your intellectual property to someone else. Someone else may also assign to you any intellectual property you want to purchase. You may transfer ownership rights over all or part of the intellectual property. This will depend on what you agree with the other party. An assignment is a legal document requiring witnesses and the signatures of both parties to be considered valid. 

As a consultant, intellectual property is generally automatically assigned to your client when you produce intellectual property during your employment. You can come to an alternative agreement with your clients before beginning employment.

Key Takeaways 

Consultants need to take steps to protect their branding so that they can stand out. When establishing your business, you should use trade marks, either registered or unregistered. You should also register your business name. When determining who owns the intellectual property you produce, it is best to be clear with your clients early on to avoid misunderstandings. You may wish to enter into legal contracts such as licence agreements or assignments to determine who owns any intellectual property you create. If you would like more information or help with your legal obligations when selling on Trade Me, contact LegalVision’s intellectual property lawyers on 0800 005 570 or fill out the form on this page.

Frequently Asked Questions

Can you enforce an unregistered trade mark?

You may be able to enforce an unregistered trade mark. You will need to show that your business has a clear reputation using the unregistered trade mark before enforcing your legal rights.

How do I know if my trade mark idea is original?

IPONZ has a trade mark search tool that will help you find any trade mark material that may be similar to yours. If your trade mark idea is not original, you may need to amend your idea.

Is there an official symbol for a registered company name?

There is no official symbol for a registered company name. If you are using your company name with a trade marked logo, you may be able to use a ® or ™ symbol depending on whether your trade mark is registered or not.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. From just $119 per week, get all your contracts sorted, trade marks registered and questions answered by experienced business lawyers.

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