Intellectual Property Lawyers
Intellectual property: what is it and do I need it? Look out
For any start-up business, protecting intellectual property is vitally important for growing and expanding your business in a competitive market place. Intellectual property is important because compared to other competitors it can distinguish the goods and services that your business provides. Without intellectual property, businesses may all look the same.
What is intellectual property (IP)?
Intellectual property is a very broad term that is constantly changing and evolving. Common features shared by all intellectual property is creation through independent intellectual effort (such as “did you use creativity?”) and is distinguished from real property (such as real estate) and chattels (like everyday goods). [1]
Intellectual property can include but is not limited to trade mark, copyright, patent, confidential information, design and plant breeder’s rights. After all, intellectual property is always changing, growing and expanding, the list can potentially be endless!
Three easy steps to knowing and protecting your IP
When expanding your business, an important step is knowing what parts of your business constitutes intellectual property, how those parts can be protected, and how to maximize the opportunities that intellectual property provides.
It is best to:
1. Research, Research, Research
Be conscious of knowing what parts of your business might constitute intellectual property. If you have the slightest thought that a part of your business might be intellectual property.
2. Working out what part of your business is IP? You might have a treasure pot in disguise
Types of intellectual properties found in ongoing or new businesses include:
Patents
An invention registered as a patent enjoys protections. An invention can be registered as a patent if it is novel, inventive, useful, a manner of manufacture, and not secretly used. [2]
For example, if you create a new method to manufacture paints, this may be patentable.
Once your invention is registered and depending on the type of registration lodged, your patent can enjoy protections for up to twenty-five years. [3]
Trade marks
A registered trade mark enjoys protections.[4] While registration is proof of trade mark ownership, it is not conclusive.[5] Trade marks may be registered if it is a sign, in the course of trade, and used or intended to be used to distinguish your goods and services. [6]
For example, if you have a logo that distinguishes your goods and services, then this may be registered as trade mark. If your trade mark is registered, then your trade mark may be renewed every ten years. [7]
Designs
A registered design enjoys protections.[8] A design can be registered if your product is new and distinctive.
For example, if you design a necklace that has indigenous inspirations, then that design will be assessed based on whether it is a new and sufficiently distinct. If your design is registered, the protection for your registered design is five years and may be renewable for up to ten years. [9]
Plant Breeder’s rights
A registered plant variety with the plant breeder enjoys protections. A plant variety may be registered if it is distinct, uniform, stable, and new. [10]
For example, if you combine two plant varieties to create a new plant variety, then that plant variety must be distinguishable, be able to be reproduced in a uniform manner and stable. If so, then your plant variety could be registered. If your plant variety is registered, the protection may be a maximum of twenty-five years. [11]
Copyright
You do not need to register a copyright to enjoy protections.[12] Copyright arises automatically for expressions that are works and other subject matter. [13]
For example, if you author a piece of music and that music is inspired by indigenous culture, then that music should be original and be created in Australia. If so, then your expression may be protected by copyright. [14] Once you do have copyright, copyright generally protects that expression for seventy years. [15]
Confidential Information
Confidential Information can be protected. However, this depends on number of factors including the information having required specificity, having the requisite quality of confidence, how the information was obtained, and the person involved in obtaining that information. [16]
For example, if your business has a trade secret, and your competitor acquires that trade secret through improper means like covertly stealing it from your business, then there may be a breach of confidence.
3. Why should I protect and what to look out for?
Patents
Once your invention is a registered patent, your invention becomes part of the public domain after the maximum number of years of protection expires. In deciding whether to register your patent, it is important for you to decide whether you want to enjoy a commercial monopoly of that invention through a registered patent or simply, to just keep that invention secret. Please see IP Australia’s website for more information.
Trade marks
Making sure your sign is a registered trade mark is important to protecting your brand from other competitors in the market place. Without a registered trade mark, you may not be able to exercise the exclusive rights that a registered trade mark provides. Remember, just because your business has a registered business name does not mean you have a registered trade mark. These are two separate issues.
Designs
You may come across issues in relation to overlaps between design and copyright.[17] It is important to be aware of these overlaps and to understand the legal issues when overlaps arise because this can significantly affect the duration of the protections enjoyed. Make sure to get this right.
Plant Breeder’s rights
Always consider registering your plant variety before selling.[18] If you do intend to sell your plant, then make sure you know when you are selling, because time spent selling may affect whether you can register your plant variety afterwards, or alternatively, another person may register your plant variety first! [19]
Copyright
The first step to ensuring that your expression is protected is making sure your expression qualifies for copyright. Without qualification, copyright protection cannot automatically arise. Be sure to ask.
Confidential Information
While confidentiality can be a powerful tool to protect your (confidential) information, it is important to be aware that once any confidential information becomes public, then difficulties can arise to control the circulation of that information in the public. If you don’t know what part of your business is confidential, ask.
If you have any concerns or queries concerning potential assets being intellectual property, then our Intellectual Property Lawyer may be able to help in addressing those concerns.
Important disclaimer: The material contained in this publication is of a general nature only and it is not, nor is intended to be, legal advice. This publication is based on the law as it was prior to the date of you reading of it. If you wish to take any action based on the content of this publication, we recommend that you seek professional legal advice.
[1] Craig Collins, Heather Feather, Intellectual property law (LexisNexis Butterworths, 2nd ed, 2014) 2.
[2] Patents Act 1990 (Cth) s 18.
[3] Patents Act 1990 (Cth) ss 67, 68, 77.
[4] Trade Marks Act 1995 (Cth) ss 20, 22.
[5] Mark J. Davison, Ann L. Monotti, Leanne Wiseman, Australian Intellectual Property Law (Cambridge University Press, 3rd ed, 2016) 80.
[6] Trade Marks Act 1995 (Cth) s 17.
[7] Trade Marks Act 1995 (Cth) ss 72(3), 75(1).
[8] Designs Act 2003 (Cth) ss 10, 14.
[9] Designs Act 2003 (Cth) s 46.
[10] Plant Breeder’s Rights Act 1994 (Cth) s 43(1); Collins, Feather, above n 1, 284.
[11] Plant Breeder’s Rights Act 1994 (Cth) s 22.
[12] Copyright Act 1968 (Cth) s 32.
[13] Ibid.
[14] Ibid.
[15] Copyright Act 1968 (Cth) ss 33 – 34.
[16] Davison, Monotti, and Wiseman, above n 5, 388.
[17] Copyright Act 1968 (Cth) s 77.
[18] Plant Breeder’s Right Act 1994 (Cth) s 43(5).
[19] Davison, Monotti, Wiseman above n 5, 664.