Intellectual Property

A key feature of any small business, company, or entrepreneurial pursuit is intellectual property. Intellectual property includes trademarks, copyrights, patents, designs, plant breeder’s rights, circuit layout rights, confidential information, and trade secrets. “Intellectual Property” law protects creative and intellectual efforts.

It is important to protect your intellectual property which often forms the backbone of the business or identifies your brand. In particular, it is increasingly important to be mindful of intellectual property online. Because it is on constant display, there are prime opportunities for others to infringe upon your intellectual properties.

The four most common areas are Trademark, Copyright, Patent, and Design.

Trademark

Trademarks are signs used to distinguish the goods and services of one trader from another. A trademark can include letters, words, name signatures, devices, brands, headings, labels, rickets, packaging, shapes, colours, even scents, and any combination thereof. Logos are prime examples of trademarks and a logo plus a word is known as a ‘composite.’

The primary purpose of a trademark is to distinguish one particular set of goods and services from another. Therefore, the trademark must itself convey an identifiable meaning, message, or symbol.

Registering a Trademark

IP Australia is the institution responsible for registering a Trademark. In order to register, there will be an application process which includes searching The Australian Trademarks Online Search System (ATMOSS) to make sure the trademark you are attempting to register is unique enough that it is not already registered. The registration of a trademark also includes examination, publication, and opposition period, and registration fees.

Length of Trademark Registration

Once properly registered, a trademark in Australia will stay registered for ten years from the date the application was filed, however, you may renew the registration indefinitely through paying renewal fees before trademark expiration.

Copyrights

Copyright protection grants exclusive ownership, copying, and licensing rights to creative work. A copyright is a way of protecting original intellectual property with literary, dramatic, musical, or artistic value. Sound recordings, films, radio broadcasts, television programs, and published editions of works may also be included.

Unlike trademark protections, Copyright protection is applied automatically and falls under the Copyright Act of 1968. Copyright law will vary by the nature of the work being protected. Rather than protecting ideas, Copyright instead protects the expression of ideas.

However, there are some exclusions to copyright law, such as: ideas, facts, processes, systems or compilations, works that have not yet taken a tangible form, and short titles, names, taglines, and/or icons. Protection under the Copyright Act of 1968 will be lost if a copyright is used for a commercial or industrial purpose.

Length of Copyright Protection

Once properly filed and depending upon the nature of the work, copyright generally lasts seventy years after the author’s death or the first publication after the author’s death.

Patent

Patent law covers devices, substances, methods, or processes which involve human intervention and are new, inventive, and useful. Before a patent can be formally registered, it must undergo a rigorous application process conducted under the Patents Act of 1990. When properly registered, patents protect the patent owner’s rights to exclusively commercially exploit their registered invention during the life of the patent.

Excluded from patent law are inventions which involve humans and biological processes. Also excluded are: scientific principles, discoveries, artist’s creations, mathematic models or plans, abstract ideas, and other purely mental processes. Software patentability is currently questionable, with recent cases debating this very topic. If you have any questions it is imperative to seek legal advice, particularly when the law in question is still relatively undecided.

Length of Patent Registration

Once properly filed, a standard inventive patent lasts for twenty years starting on the date of filing. An innovative patent, on the other hand, will last for seven years.

Design

Design is a form of intellectual property for products with a unique appearance due to shape, configuration, pattern, and/or ornamentation. Like patents, products seeking design protection are required to pass through a strict application process under the Designs Act of 2003. When appropriately registered, a certified design is protected from commercial use, licensing, or sale by anyone but the registered owner.

The main difference between designs and patents is the focus on appearance instead of functionality. The owner of a design only holds protection for the visual appearance of the product. Also, designs differ from copyrights in that they are required to have a commercial and/or industrial use.

Length of Design Registration

Once properly certified, the registered design will be protected for five years after the filing date of the application and registration can be renewed for an additional five years.

Intellectual property issues are generally complex and often require both comprehension of the legal requirements and a practical understanding of the product or work that needs protection. Time is generally a sensitive issue in such cases, with new brands, inventions, and designs being produced every day so don’t hesitate. Seeking legal advice from lawyers trained in Intellectual Property Issues will be the best way for you to protect your business and your name.