Intellectual property fundamentals explained

Have you ever used a unique name as part of your business name? Have you created software or written a book? Have you designed jewellery or clothing? Well that’s intellectual property!

Intellectual property (IP) is defined by the World Intellectual Property Office as: creations of the mind; inventions; literary and artistic works; and symbols, names and images used in commerce.

There are many forms of IP that are classified under different names: copyright, trade marks, patents and designs.  This article will introduce the concepts of IP, whether they can be registered or not, and how else they can be protected.

Intellectual property symbols

 Copyright

Registered right: no, copyright is automatic upon creation.
Copyright is a set of rights that are automatically assigned upon the creation of a literary work.  Authors and creators do not need to register their rights once they create something, but enforcing copyright can be very difficult across all industries.  Copyright does not protect ideas or techniques, and in today’s digital world it has been criticised for being unable to keep up with digital technology.

 Trade Marks

Registered right: yes but it is not mandatory as there are common law rights available.
Duration of registration: 10 years and can be renewed perpetually.

A trade mark is a right that is used to protect a company’s brand and is used to distinguish your goods and/or services from those of others.  A trade mark registration gives a trade mark owner the right to prevent others from using their name to trade and also gives the owner the right to licence or even sell the trade mark at a later date.

A trade mark does not have to be registered.  If use and ownership can be established as priority then that person and/or company will be the owner of the trade mark.  However, to prove first use and ownership at common law can be a complicated and expensive exercise. 

Patents

Registered right: yes.
Duration of registration: 20 years with no right of renewal.

A patent is a right that is granted for something new, inventive and useful.  Unlike copyright, patents protect new ideas and also allow patent owners to commercialise their products without fear of them being stolen.  A patent application can take up to 18 months and before it is filed, the patent can’t have been disclosed in the public domain.  This places possible patent owners in difficult situations as they try to obtain funding from third party investors.

Designs

Registered right: yes.
Duration of registration: 5 years and can be renewed for a further 5 year term.

 A design is unsurprisingly related to the design of an ornament.  A designer can only enforce their design rights in Australia if an application is lodged.  The designs, as drawings, are protected by copyright.

Trade Secrets

Trade secrets or business know-how is generally something that cannot be protected by a patent but is integral to the functionality of a business.  It can include supply databases, customer databases, and even recipes (such as the Coca Cola recipe).  The best way to protect trade secrets is by having third parties sign confidentiality agreements.

Two cartoon men stealing a box with ideas

Trans-Pacific Partnership

We expect that in the near future some intellectual property law is going to be amended if the Trans-Pacific Partnership trade agreement is signed and ratified by the Australian government. At the time of writing, the text of the agreement is yet to be released and its potential impact on the intellectual property is unclear. As a consequence, it’s a good idea to take stock of the intellectual property in your business and attend to documenting the authorship of your creations and registering your IP.

Seek legal advice

If you have any questions on how to protect your IP, please contact Source Legal Online at always@sourcelegalonline.com.au or 1300 609 450. 

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