Week 2. Protecting your Intellectual Property

*Please note this is a general guide only and should not be used in place of obtaining our advice.

The intellectual property laws in Australia aim to provide creators and inventors with exclusive rights to deal with their creations or inventions for a period of time. It’s designed to encourage creativity and innovation in businesses and start-ups.

There are several forms of intellectual property which are likely present in your business, some of which you need to take steps to “protect” and some of which is automatically protected in Australia.

Example of Intellectual Property

Business Name

Do you need to take steps to protect it? Yes - Note that simply registering your business name doesn’t necessarily stop others from using your name! To get the highest level of protection, you need to trade mark it. We discuss this below.

Domain Name  

Once you buy a domain name its yours (as long as you keep paying the fees for it). No other steps are required.

Copyright (books, articles, films, music, art)

Guess what? Copyright protection in Australia is automatic and no steps are initially required!  

Inventions

You need to take steps to protect your inventions by patenting them. We discuss this below.

Copyright

Copyright relates to a person’s creative skill and labour, and aims to protect the way an idea or information is expressed.

Copyright includes protection of literary works like books, poems and newspaper articles, computer programs, films, musical compositions, artworks and other works.

Copyright intends to either prevent another person from using your work or to allow you to receive money for another’s use of your work.

You don’t have to register to obtain copyright protection – the copyright protection is automatic from when your original work is created. However, it is best practice to put a copyright notice on your work (©).

Patent

If you invent something that is new to the world, or is a significant improvement on an existing invention, then you may be able to get patent it (which will give you the exclusive right to that particular invention for a period of time).

There are certain requirements that must be satisfied before a patent is granted, including the invention must be new, must not be obvious and should be useful.

There are two types of patents in Australia (standard and innovation). Standard patents are difficult to obtain and innovation patents are much easier (however provide limited protection).

Trade mark

All businesses have at least one trade mark, and that is their business name. Other trade marks could be logos, phrases, sounds, smells, shapes, and pictures, or a combination of these, which are used in a business to indicate the origin of goods and services or to distinguish goods and services from competitors.

To protect your trade mark, you need to register it with IP Australia. The process generally takes up to 9 months, however once your trade mark is granted it gives you the exclusive rights to use that trade mark.

There are certain requirements that must be satisfied before registering a trade mark. The most common issue with trade marks is that they are descriptive of the services being provided, in which case IP Australia is unlikely to register them. For example, a business name called “We Sell Clothes” is obviously descriptive of the services it provides. On the other hand Apple has successfully trade marked its business name because the name “Apple” does not describe what they do.

Trade marks go beyond just your brand name and logo. For example, demin company Levis has registered trade marks on distinctive pocked stitching on their demin pants, and fashion brand Burberry has registered a trade mark for its distinctive check pattern.

What Next?

Merton Lawyers can undertake an IP audit of your business and advise you on what you need to protect and your likelihood of success in applying for protection where this is required.

Please contact us on (03) 9645 9500 or email our Intellectual Property team at hello@mertonlawyers.com.au for more information.

*Please note this is a general guide only and should not be used in place of obtaining our advice.