Intellectual Property

Your intellectual property is a valuable business asset, and you should protect is as you would any other asset.

Understanding the rights that exist and the methods available for protecting intellectual property is the first step to creating greater value for your business.

Trade marks

A trade mark can be a letter, number, word, phrase, sound, smell, shape, logo, picture, aspect of packaging or a combination of these that distinguishes your goods or services from those of other traders.

There is no legal requirement to register a trade mark, although registration establishes your legal rights to use, sell or license the trade mark or to take action against another party and prevent them from using your trade mark without permission from you.

If you do not register your trade mark, and someone uses the same or a very similar trade mark, you can still potentially take legal action to protect your trade mark (such as passing off under common law or misleading and deceptive conduct), but such an action can be difficult, expensive and time consuming.

Copyright

Copyright is a collection of exclusive rights that vest in certain types of creative work, such as written material, art, literature, music, film, broadcasts and computer programs.

A single item can contain more than one element that is protected by copyright. For example, a website is comprised of the text on the website, any images on the website, and the computer coding behind the website. Each of these is protected by copyright, and it is important to identify the owner of each of these rights.

The exclusive rights granted by copyright vary depending on the nature of the material. In general, they include the exclusive right to copy the material, to publish the material and to make various other uses of it.

In Australia, copyright protection is automatic. You don’t have to apply to register your copyright.

The owner of copyright is usually the person who created the material, although there are some exceptions to this such as where the person is an employee and the material is created as part of their employment, in which case the employer will own the copyright.

It is particularly important when buying or selling a business, to ensure that any asset in which copyright subsists is the seller’s to sell.

Patents

Inventions that are new, inventive and useful can often be protected through patent registration.

It is important to be aware that patents protect only a specific invention and once an invention has been made public it is no longer able to be protected through patent registration.

A patent owner has the exclusive right to use, sell or license the invention. Patents also allow the owner to stop others from manufacturing, using, copying, or selling the device or process.

There are two types of patent registration available in Australia – innovation patent and standard patent. The process for registering a patent can often be long and complicated and professional advice is recommended.

Trade secrets and confidential information

A business’ customer lists, business and marketing plans, internal business processes, formulas for products, or business ideas that have not been openly discussed are extremely valuable to that business and most business’ take steps to protect these trade secrets or confidential information.

There is no registration process for trade secrets or confidential information, and they are usually protected via contracts, agreement and management procedures.

For example, if you are entering into a contract with a supplier of IT services which requires that IT business to have access to all of your data (including trade secrets and confidential information), you should enter into a confidentiality agreement with the IT business. If you do not enter into a confidentiality agreement, and the IT business starts a business in direct competition with your business, you will likely have no legal rights against that IT business.

It is important to ensure that the confidentiality agreement deals with the specific circumstances of your business.

Moral rights

Moral rights are granted to the creator of material in which copyright subsists.

Moral rights are the right of attribution of authorship, the right against false attribution of authorship and the rights not to have a work subjected to derogatory treatment.

Unlike copyright, moral rights are non-transferrable. They will always vest in the creator. As a result, a person may have moral rights in material but not own the copyright.

Designs

Designs, which are the way a product looks or a design on a manufactured product, can be registered if they are new, distinctive and have not been publicly disclosed.

Some designs can be protected by copyright, however where a three-dimensional design is in industrial or commercial use, copyright protection no longer applies. In order to be protected, such designs need to be registered.

Other types of intellectual property

There are also some other specific intellectual property rights, such as plant breeders’ rights and circuit layout rights.

Plant breeders’ rights are used to protect new varieties of plants by giving exclusive commercial rights to market a new variety or its reproductive material.

Circuit layout rights automatically protect original layout designs for integrated circuits and computer chips.

Exclusive rights and duration

Registered intellectual property rights usually provide you with exclusive rights. Each intellectual property right has its own restriction in terms of duration.

Copyright protection generally lasts for 70 years. Where duration of protection depends on publication, protection is for 70 years from the date of publication. Otherwise, the duration of the protection is the life of the author plus 70 years.

Standard patents last for 20 years. Trade marks can remain in force indefinitely provided renewal fees are paid every 10 years.

Design registration protects the design for an initial period of 5 years that is renewable up to 10 years.

International protection

Most intellectual property rights are territorial, meaning they have to be dealt with in each new territory where you intend to trade. For example, a patent, trade mark or design granted in Australia is not automatically granted in other countries.

Copyright is the only intellectual property right that is automatically recognised internationally. All other forms of intellectual property need to be specifically assessed and approved in each country in which you intend to do business.

Australia is party to a number of international agreements, making it easier to apply for rights such as trademarks, patents and designs in other countries.

Transferability

Intellectual property rights are negotiable and can be used for commercial advantage. They can generally be bought, sold, licensed, given away or made freely and widely accessible.

How Douglas Cheveralls Lawyers can assist?

As you can see from the above, there are many different types of intellectual property, each with its own set of rules and procedures for protection.

Douglas Cheveralls’ experienced lawyers can help you navigate your business through intellectual property law, to ensure that you have taken adequate steps to protect your intellectual property, and also to ensure that you are not inadvertently breaching anyone else’s intellectual property.

Find more information about how Douglas Cheveralls Lawyers can help you here.