Intellectual property (“IP”) can be described as “the property of your mind” or “proprietary knowledge”. There are various types of IP, such as inventions, trademarks, designs or the practical application of your idea (discussed below).
A business’s IP is usually a valuable business asset, and it is usually easier and cheaper to protect it properly at the outset so that only enforcement action is required if your rights are infringed. However, IP is only as valuable as its commercial prospects and it doesn’t mean a thing unless you can capitalise on the opportunities it provides.
It is important that you understand how to protect IP as it is a valuable business asset and it will usually be easier and cheaper taking enforcement action following a breach of your rights if they have been protected “up front”.
There are various types of trademarks, such as letters, numbers, words, phrases, sounds, smells, shapes, logos, pictures, aspects or characteristics of packaging, or combinations of the above which distinguish your business’s goods and/or services from those goods and/or services of other businesses.
Put simply, your trademark is the identifying mark of your particular goods and/or services which makes your goods and/or services distinct from those of other traders.
Although there is no legal requirement for you to register your trademark/s, registration will establish your legal right to use, sell or license the trademark to third parties, and to take enforcement action against third parties who have breached your legal rights in respect of your trademarks, preventing them from using your trademark/s without your express permission and consent.
If you fail to register your trade mark/s, and a third party breaches your legal rights in respect of your trade marks, you will need to rely on alternative remedies to enforce your rights, such as “passing off” (a concept established under the common law), or misleading and deceptive conduct. These types of actions can be difficult to establish, and expensive and time-consuming to pursue.
Copyright is the term used to describe the collective exclusive rights which vest in particular types of “creative works”, such as written materials, art, literature, music, films, broadcasts and computer programs (“Elements”).
A single “item”, or “creative work” can contain more than one “Element” that can be protected by copyright. For example, a website may contain copyrighted text, images and computer coding, among other things. Each of these “Elements” is capable of being protected by copyright, and it is therefore important to identify the owner of the copyright in each of these “Elements”, by stating on the website that the content is subject to “copyright”.
Generally, where the material is protected by copyright, the owner of the material is immediately granted exclusive rights to copy the material, to publish the material, to make various other uses of it, and to prevent others from doing the above.
Copyright protection is automatic in Australia, and there is no need for you to apply to register your copyright.
Usually, the person that owns the copyright is the person who created the material, although this is not always the case, for example, where the person who created the material is an employee and the material was created as part of their employment, in most cases their employer will own the copyright in the material.
It is particularly important when selling your business that you ensure that any asset of the business in which copyright subsists is, in fact, yours to sell.
Patents are used to protect your inventions that are new, inventive and useful, and protection is obtained through patent registration.
It is important to note that registering your patent will only provide you with protection in respect of the specific part of the invention which you have “patented”, and once the invention has been made public, it will no longer be protected by patent registration.
By registering your patent, you will receive the exclusive right to use, sell or license your invention, and in addition, you will receive the right to prevent unauthorised third parties from manufacturing, using, copying and/or selling your invention, whether it be a device or process.
In Australia, there are two types of patent registration: innovation patent and standard patent.
It can be quite complicated to register a patent, and we, therefore, recommend professional advice is sought if you are considering registering a patent.
Trade Secrets & Confidential Information
Confidential Information is any kind of information that is not publicly known.
For businesses, confidential information can include customer lists, business and marketing plans, internal business processes or formulas for products, amongst other things. In some circumstances, business ideas that have not been openly or publicly discussed are also considered to be confidential information.
Usually, confidential information and trade secrets are protected via contracts, agreements and management procedures, and in Australia, there is no registration process which offers legal protection for your confidential information. Generally, the owner of the confidential information has the exclusive right to use, sell or license the confidential information.
Where copyright subsists in material, moral rights are automatically granted to the creator of that material.
Moral rights include a right of attribution of authorship, a right to disclaim false attribution of authorship, and the right to ensure that the material protected is not subjected to derogatory treatment.
Unlike copyright, you cannot transfer moral rights, as these always vest only in the creator of the material. As such, a person may have moral rights in material but may not necessarily own the copyright in that material.
Designs can be registered if they are new, distinctive and have not been publicly disclosed. A design might include the way a product looks or it could be a design on a manufactured product.
In order to protect a design with copyright, it will need to be registered. Not all designs can be protected by copyright, however, for example, a three-dimensional design which may have previously had copyright protection but which is now in industrial or commercial use, will no longer be protected by copyright
Other types of IP
Plant breeders rights are rights which protect new varieties of plants by giving a person exclusive commercial rights to market a new variety of plant, or that plant’s reproductive material.
Circuit layout rights are automatic rights which will protect a person’s original layout designs for integrated circuits and computer chips.
Exclusive Rights & Duration
Registered IP rights will usually provide the holder of the registration with exclusive rights in respect of the registered IP. Each registered “right” will have its own restriction in terms of the duration of protection granted.
Generally, copyright protection will last for 70 years. Where protection is dependent on whether the material is published, the protection period commences from the date of publication of the material and lasts for 70 years from that date. If protection is not dependent on the publication of the material, the protection is for the duration of the life of the author of the material, plus an additional 70 years.
Standard patents, when registered, will last for 20 years from the date of registration. Trademarks, once registered, can remain protected via registration indefinitely, provided the registration renewal fees are paid every 10 years.
A design which is protected by registration will initially be protected for 5 years, however, this protection is renewable for up to 10 years.
Most IP rights are restricted to the territory in which they are registered/protected, meaning that steps to protect the material will need to be taken in order to protect the material in each new “territory” where you intend to trade. For example, a patent, trademark or design granted protection in Australia is not automatically granted protection in other countries.
Copyright is the only IP right which is automatically recognised globally.
Notwithstanding the above, Australia is party to a number of international agreements, which makes it easier to apply for rights in respect of trademarks, patents and designs in other countries.
Aside from moral rights, IP rights are negotiable and can be used for commercial advantage, by being bought, sold, licensed, given away or made freely and widely accessible.
IP is a valuable business asset. Ensuring it is adequately protected should be standard business practice in any business and should form part of your overall business plan. Understanding the rights that exist in respect of your IP and the methods that are available to protect your IP and the enforcement of these rights is the first step to creating greater value in your business.
For more information on protecting your IP rights please contact us to arrange an Introductory Consultation on (08) 9335 9877 or email firstname.lastname@example.org