What on earth is Intellectual Property?
All businesses are born from a series of ideas. There’s the idea for the business name, the idea for a logo and the idea for a product or a service. Great ideas can drive the success of a business and it’s more important than ever to protect those ideas whenever you can. Your ideas, products, services and designs are your Intellectual Property, but only if you take the right steps to protect them.
Intellectual property (IP) is the area of law that covers the intangible assets of a business. It includes copyright, trade marks, designs, patents and trade secrets, circuit layouts and plant breeder’s rights. The type of IP that is relevant to your business will depend on the type of business you’re running.
Intellectual Property laws also vary from country to country. While there are many similarities between the laws in most western countries, the details do vary, so you may need to seek advice from an expert in your jurisdiction. The information below has been written from the perspective of Australia law.
Read on to find out which Intellectual Property protection may be applicable to you.
Copyright covers “works” such as literary, artistic, musical and dramatic works. Copyright doesn’t cover an idea but it can cover the way that an idea is expressed. So copyright applies to a written recipe for an apple pie but it does not apply to the apple pie itself.
In your business you may own the copyright in the words that are written on your website, photos you have taken, videos you have recorded, artistic works you have created and many other things. The owner is usually the person who has created the “work”, that is, the person who has written the words or taken the photo. You do not need to go through a registration process to protect your copyright in Australia. Beware of websites that suggest that you do!
As the owner of your copyright you have the exclusive right to reproduce, publish, perform, communicate or adapt the work. Your rights will depend on the type of work you have created.
Copyright owners also have moral rights which include the right to be attributed as the author of a work, the right to not have authorship falsely attributed to someone else and the right for the work to not be subject to derogatory treatment.
A great website for finding more information on copyright laws in Australia is http://www.copyright.org.au/
Trade mark protection is about protecting your brand. A trade mark is something that you use to distinguish your business from other businesses in the market. This may be the name of your business, your logo, your tag line, your packaging, the name of your product or service or even the shape, colour or smell of your product. For most small businesses the most important part of their brand is the name of their business.
To have the exclusive right to use your business name you need to apply for trade mark registration. Adding your business name to the Australian business name register does not give you any ownership rights over that name.
Once you have a trade mark registration then you will have the exclusive right to use that trade mark in relation to the goods or services that are listed on your application. The legal protection provided by your trade mark is only as good as the description of the goods and services listed on your application.
Trade mark registration can be expensive but once registered you are protected for 10 years or longer if you renew your registration at that time. Getting your trade mark registration right from the start can reduce the need to apply for additional trade marks further down the road.
To find out whether you need a trade mark for your business you can download a checklist here: http://wintrademarks.com.au/should-you-register-trade-mark/
For general information about trade marks in Australia go to https://www.ipaustralia.gov.au/sites/g/files/net856/f/tm_application_guide.pdf
The purpose of design registration is to protect the visual appearance of a product. The creator of a design may apply to have that design registered. Designs relate to features of a product like it’s shape, configuration, pattern or ornamentation. There can be some overlap between things that are protected by copyright and things that can be protected by a design registration.
For a design to be registered it must be new and distinctive. If your design has already been used or published in Australia then you may not be able to get it registered.
An owner of a registered design has the exclusive right to use that design commercially and to licence or sell it.
For more information about design registration take a look at this IP Australia guide: https://www.ipaustralia.gov.au/sites/g/files/net856/f/design_application_guide.pdf
Patents are about protecting new and useful inventions. A patent can protect a device, substance, method or process. Essentially a patent is about protecting the way that something works.
As the owner of a patent, you have the exclusive right to exploit the invention or authorise another person to exploit it. This gives a patent owner time to commercialise the invention before other businesses are permitted to make and sell their own version.
To obtain patent rights you have to go through a registration process. There are a few different types of patents that offer different protection. Patent applications can be very complex and understanding them often requires expertise in engineering or some other scientific field. For this reason it can be expensive to have your patent application processed.
The timing of your patent application is also important. If you share or demonstrate your invention to the public too early then that may prevent your patent from getting registered.
For more information on patents head to https://www.ipaustralia.gov.au/sites/g/files/net856/f/patent_application_guide.pdf
Other IP rights that can apply to businesses are trade secrets (or confidential information), circuit layouts, and plant breeder’s rights.
Intellectual property is a complex area of law and it can be helpful to get advice on which forms of IP are worth protecting for your business. IP Australia is a wealth of information about intellectual property and the registration process but keep in mind that IP Australia plays no role in the enforcement of your IP rights and cannot advise you on how to best protect your business.
For more information about IP you can go to the IP Australia website: https://www.ipaustralia.gov.au/
For more information about trade marks take a look at my FAQs at: http://wintrademarks.com.au/frequently-asked-questions/
Hi, I’m Lisa Win. As a registered Trade Marks Attorney, I give personalised advice on how to give your business and brand the legal protection it deserves.
I understand what it’s like to run a small business and build a brand. After leaving my career as a lawyer, I launched an online toy store and grew a business as a business coach. A few years later I was drawn back to the law and after completing specialist training I became registered as a Trade Marks Attorney.
I understand that building a brand takes time, money and whole lot of effort. Your brand is like your baby. You dream it, create it and bring it into the world. My job is to help you to protect it and keep it alive.
As the founder and CEO of Mums With Hustle, I have the best day job in the world: teaching entrepreneurs how to grow their beautiful businesses online. When I started the business, that was everything I wanted, but since then, it has grown into something much bigger. Now, I get my joy from helping women find their zones of genius within a community that truly celebrates their success. I truly believe that when women choose to band together, we can do anything - and if you feel the same, there’s a place in the MWH community for you.
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