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Intellectual property and how to protect it

Intellectual property (IP) can be your branding, an invention, your original creative work or a design. It is the property of your mind and is the productive new ideas you create. It must be original. It must be new and, in some instances, innovative.

Your IP is a valuable asset. You’ve likely spent good time, energy and money coming up with it.  In legal terms, some IP is actually referred to as “the sweat of the brow”, so it’s worth protecting.

But what do you need to formally protect? And how do you go about it? There are four main types of IP.

TRADE MARKS

This is essentially your branding. The name of your business immediately comes to mind. However, there are likely to be other things, like your logo or a tagline (which may be a phrase you use as branding).

You may also have named particular goods or named particular services which you use as branding to attract, and promote your, business.  

You can formally protect any words, numbers, letters, phrases, shape, colour or aspect of packaging which identify your goods or services from those of another trader.

Registration

If you do not have a registered trade mark you may display the trade mark symbol (TM) alongside your branding. Once you have a registered trade mark you are entitled to display the registered trade mark symbol alongside your branding.

To best protect your trade marks and to be able to enforce your trade mark rights under the provisions of the Trade Marks Act 1995 you must register your trade mark with IP Australia.  

 This can be done on the IP Australia website, but, a word of advice, it’s important to get it right as, once your application is submitted, it is only possible to reduce the scope of the trade mark (not increase).  

There are 45 classes of goods and services. You must select the correct specifications which reflect your core business activities or select an accurate reflection of your individual goods or individual services.

You must then ensure the specifications are placed in the correct class.  

If you do not make appropriate selections, then you run the risk that your mark will be removed from the Trade Marks Register for “non-use” or that you are not protected the way you envisaged. Your competitors can exploit these gaps.

Once registered you have the exclusive right to use, sell or licence your trade mark in Australia. 

Registered trade marks last for 10 years and can be renewed over and over. 

COPYRIGHT

Copyright broadly protects your creative works. For example:

  • written works
  • artistic works
  • dramatic works
  • musical works
  • film
  • broadcasts
  • computer programs. 

As soon as you document your idea or creative concept, it is automatically protected by the provisions of the Copyright Act 1968. 

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In essence, “documentation” can be on paper or in electronic form. When you own copyright material, you have the exclusive control of the use of the creative work. That right can last for a long time. Copyright in artistic works lasts 70 years from the date of first publication, 50 years for radio and television broadcasts and 25 years for published editions.

Registration

There is no system of registration for copyright protection in Australia so there is no need to “register” it as such. However, it is best practice to place a label or symbol on your work to indicate your copyright in the materials.  

The copyright symbol next to a simple statement that you are claiming copyright in the materials is enough.

DESIGNS

Designs protect the visual appearance of new and distinctive products. They protect the physical appearance of a product, but not the way it works. The features protected are broadly shape, configuration, pattern, ornamentation and colour.  

Design rights protect the whole product. The product must have a physical and tangible form, must be manufactured or handmade and must be produced on a commercial scale.

The important tip in relation to designs is not to “publish” it before you have applied to have it protected through IP Australia.  Keep it a secret or it will be much more difficult to enforce your rights.

Registration and certification

There are two steps to protection for designs:

Step one: you must apply to register your design. Registration provides you with the exclusive right to sell, use (and authorise others to use) your design.  

Step two: you may wish to apply to have your design certified. IP Australia will then examine your design. If it passes examination, it will be certified.  

Once certified you have the same rights as registration plus the legal right to enforce your design against an infringer. Once registered it will last for 5 years and you may renew it for a further 5 years.

Patents

Patents protect your inventions. They protect how an invention works or functions. You cannot patent your idea. Indeed, a patent is a right granted by registration with IP Australia for any method, process, device or substance. Patents must be new, have an inventive step and be useful.

There are two types of patent:

1. Standard patent: A standard patent must have an inventive step. This means that it is not obvious for someone in the relevant field to invent. It also must differ from technology which already exists. Once registered it has a life of 20 years.

2. Innovation patent: A innovation patent must have an innovative step. This means that your invention must be different to technology that already exists, but that difference may simply be a further development. Once registered it has a life of 8 years. However, these patents are ending and the deadline to file one is 25 August 2021.

Registration and certification

Once your patent application has been filed it will then be looked at by IP Australia to determine whether it meets with the relevant criteria. It will then be ‘granted’.   An innovation patent cannot be enforced unless it has been examined. 

The next step is examination. This must be done for a standard patent but is optional for an innovation patent.  

Then if the innovation patent passes the IP Australia tests it will be ‘certified’. Standard patents do not require this certification.

It is important to note this information does not represent legal advice and you should seek specific legal advice for your circumstances. We recommend Australian Business Lawyers & Advisors to help with your trade mark registration.

This article originally appeared on Australian Business Lawyers & Advisors

Louise Blair

Associate – Australian Business Lawyers & Advisors

Louise is a senior lawyer and a member of the Australian Business Lawyers & Advisors Corporate and Commercial team with a speciality in intellectual property

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