Protecting your business intellectual property

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1 October 2019


Intellectual property or “IP” is a valuable business asset that should be protected from the time it is created in order to maximise the value of a business.

In Australia, the main types of business IP include copyright, trade marks, patents, designs, and confidential information.

Copyright

Copyright is a bundle of exclusive rights which vest in certain types of creative works or other subject matter for a defined period. In Australia, there are 2 main categories of material which are eligible for copyright protection. These include “works” such as literary, dramatic, musical and artistic works, and “subject matter other than works” such as cinematograph films, sound recordings, television, and radio broadcasts.

Ownership of copyright usually vests in the person who created the material, except where the material is created by an employee as part of his or her employment. In that case, the employer will generally own the copyright.

Copyright protection varies depending on which category the material falls into. Copyright does not protect ideas as such but rather the way the ideas are expressed. In Australia, copyright protection is automatic and registration is not required.

Trade marks

A trade mark is a way of identifying a unique product or service. It is a form of brand protection which distinguishes between the products or services of a business and those of its competitors. A trade mark is not just a logo. It can be a letter, number, word, phrase, sound, smell, shape, logo, picture, movement, aspect of packaging, or a combination of these.

Trade marks are protected by registration which establishes the owner’s legal right to use, sell or license the trade mark to third parties, and to take enforcement action against third parties who infringe the trade mark.

Using another person’s trade mark (whether registered or not) without the owner’s consent is against the law. However, a business which fails to register a trade mark must rely on alternative remedies, such as actions for common law “passing off” or misleading and deceptive conduct, to enforce its rights if a third party infringes the trade mark. These actions can be difficult to establish, and expensive and time-consuming to pursue.

Patents

A patent is a legally enforceable right which protects an invention that is new, useful, and innovative.

Patent registration gives the owner exclusive commercial rights (or a monopoly) over an invention, including the right to use, sell or license the invention, and the right to prevent third parties from manufacturing, using, copying and/or selling the invention.

In Australia, patent protection is obtained through registration with IP Australia. The duration of protection is determined by the type of patent: a standard patent lasts up to 20 years, and an innovation patent lasts up to 8 years.

Designs

Design is what makes a product look the way it does, and includes elements such as:

  • shape;

  • configuration;

  • pattern; and

  • ornamentation.

When applied to a product, these elements give the product a unique appearance.

Designs are generally protected by registration under the Designs Act 2003 (Cth) if they are new, distinctive and have not been publicly disclosed. A registered design gives the owner the exclusive right to commercially use, licence or sell the design.

Confidential information

Confidential information is any kind of information that is not in the public domain. In business, confidential information can include customer lists, trade secrets, business and marketing plans, financial information, internal business processes, and product formulas. In some cases, business ideas that have not been openly or publicly discussed are also considered to be confidential information.

Confidential information is generally protected via contracts, agreements and management procedures. In Australia, there is no registration process which offers legal protection for confidential information. Generally, the owner of confidential information has the exclusive right to use, sell or license it.

Conclusion

IP is a valuable business asset. Ensuring it is adequately protected should be standard practice for any business. Understanding your rights in relation to business IP and the options available to protect it are crucial first steps to creating greater value in your business.

Do you have business IP that needs to be protected? Get in touch and let us guide you through the process.