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The Simple Guide to Protect Your Intellectual Property In Australia

Commercial Law

The Simple Guide to Protect Your Intellectual Property In Australia

Intellectual property is a broad subject. Many business owners and companies in Australia need to protect their intellectual property but what exactly defines IP and how do you go about safeguarding it?

What is IP?

Intellectual property is the property of your mind as a result of your creativity or proprietary knowledge. For something to be your intellectual property, it must be an original or new idea. Of course, establishing whether your idea is new or truly original is not always straight-forward.

What is not IP?

Business names, company names and domain names are not types of IP. This is a common misconception in Australia. Registering a business name does not give you exclusive rights as you would have with a registered IP and you do not automatically have the right to use that name as a trade mark.

Copyright and circuit layout rights are also a separate issue. For more information on these, check out the Department of Communications and the Arts website.

What are the different types of IP in Australia?

Intellectual property in Australia is broken down into four main categories.

Patents

Patents apply to any substance, device, method or process that is new, inventive and useful. Inventors and pharmaceutical companies often apply for patents.

There are three different types of patents in Australia. The Standard Patent lasts for up to 20 years, the Innovation Patent last for up to 8 years and Pharmaceutical Patents can last up to 25 years.

Having a patent for your idea or product will:

  • enable you to prohibit others from manufacturing, using and/or selling your invention in Australia without your permission
  • allow you to license someone else to manufacture your invention
  • take legal action against people who are using your invention without permission

Trade marks

Trade marks identify the goods and/or services of a particular trader as distinct from other traders. It refers to the overall brand and can cover everything from logos, words, letters, numbers and colours to slogans, jingles, scents, shapes, pictures and aspects of packaging or branding.

A registered trade mark is different to a registered business, company or domain name. Having a registered trade mark will give you exclusive rights to use, licence and sell the mark as well as take legal action to prevent others from doing so.

A trade mark lasts for ten years after the filing date and can be renewed at the end of this period. An important thing to note with a registered trade mark is that it must actively be used in the course of trade. If a trade mark is not used, it can be removed from the register. This discourages traders from registering multiple trade marks for the sole purpose of preventing their competitors from having access to them.

Designs

Many people confuse the IP rights for trade marks with IP rights for registered design.

A design must be new or unique in order to be registered whereas a trademark does not. Design also refers to the new and specific visual features of a product such as shape, configuration, pattern or ornamentation.

For example, trade marks would protect a logo or slogan for an airline whereas a registered design would protect the new and innovative shape of an ergonomic chair or coffee machine.

Often used for footwear, fashion items and kitchen appliances, design registration protect designs that have an industrial or commercial use. A registered design gives you exclusive rights to commercially use, licence or sell it.

When it comes to design registration, there are specific regulations as per the Designs Act 2003.

Plant breeder’s rights

Plant breeder’s rights protect the commercial rights of new plant varieties. New varieties of all plant species are potentially registrable. A new variety is one that has not been sold with the breeder’s consent beyond the allowable time period.

Plant breeder’s right protection for most plant species applies for 20 years. Protection for Vines, Bougainvillea, Campsis, Hedera, Vitis and trees can last for up to 25 years. This protection gives you exclusive rights to:

  • produce or reproduce the plant material
  • condition the plant material for the purpose of propagation
  • sell the plant material
  • import and export
  • stock the plant material

There are many notable exceptions along with complex legislation regarding plant breeder’s rights. For more information, head to the Australian Government’s website.

Why should you protect your IP?

Protecting your IP is essential for your branding and legal protection. Registering your IP under the correct category will not only ensure that other companies don’t exploit your ideas, products and branding but will also make sure that you are not infringing on any copyright or IP laws yourself.

Properly registering your intellectual property as soon as possible will save you an incomprehensible amount of time money and hassle.

How to protect IP in Australia

As you can see from the above information, the rules and regulations surrounding intellectual property in Australia can be complicated and hard to keep track of.

There is a great deal to consider before registering your intellectual property but the basic steps for protecting your IP are:

  1. Identify your IP – from your name and logo to your innovative designs and new ideas, what makes you different to your competitors?
  2. Understand your options – research the different types of IPs and copyright laws
  3. Don’t tell anyone – keep your ideas confidential until they are adequately protected
  4. Research the market – search the patent, trade mark and design databases to ensure your ideas are original and that you are not infringing on others’ IP
  5. Register your idea or brand

To make sure that you are making the best choices for your particular circumstances, you should consult a lawyer specialising in commercial law and intellectual property. This will not only provide you with the specialist knowledge you need but will also help streamline the process and give you peace of mind that all possible legal aspects are adequately covered.

For more information on Intellectual Property in Australia, head to the Government’s IP website or contact our team of commercial law experts today for a consultation.