When many young entrepreneurs and start-ups turn their minds to business assets, matters such as finances, office accommodation, computers, equipment and staff are among the first things that come to mind.
But protecting your business assets, and the profits that flow from them, also encompasses intellectual property (IP).
Australia’s framework of IP laws are designed to protect everyone – whether you are an entrepreneur, small business owner, designer, artist or inventor – with exclusive rights to use and control your intellectual or creative work.
What Area Of Intellectual Property (IP) Law Protects You?
The first step is to work out what kind of IP you actually own. IP is not registered or protected as a physical ‘thing’, but rather as a set of rights over how certain things such as sounds, images, words or creative works are used.
IP is the umbrella term for ‘property’ that you have developed and devised through your intellect. Nevertheless, not all IP is the same, and not all creations will attract IP protection under the law. Some forms of IP require formal registration through a government body to be protected by the law; while other forms are automatic.
Ideas are not IP and cannot be protected as IP. To protect a form of IP, it must have an aspect of physicality or be in some tangible form.
Patents are devices, substances, processes or methods that are useful, new and inventive.
Quite often, patents are referred to as ‘inventions’. To successfully claim protection and ownership of a patent, patents must have formal registration.
Patents grant their owners a state-granted monopoly of the commercialisation of the invention, but they do have a maximum life span for you to exploit them as your exclusive property. The number of years you have this monopoly over the invention will depend on the type of patent you obtain.
A registered design covers the look or appearance of a product that is new and distinctive.
It does not, however, cover how something works, i.e. its purpose or function. These aspects are likely to come under the heading of patents.
To achieve the greatest degree of protection under the law, and to ensure your designs are not copied, you will need to have certification of your registered design. Again, as a design must be new, you will need to look into filing any applications prior to publicly disclosing your designs. The maximum lifespan for a design is 10 years, during which time you have exclusive ownership to exploit the design.
3. Trade Marks
As an entrepreneur or business owner, do you use any signs or symbols to distinguish your goods and services from the goods and services of other traders?
A trade mark can be your brand name, logo, slogan, or even more abstract things like sounds, smells and colours.
Formal registration is required for the owner of a trade mark to claim protection and ownership. While patents and designs must be new, trade marks do not have this same requirement, which means applications can be made after publicly disclosing your trade marks. Trade marks, in Australia, can be renewed in 10 year blocks indefinitely.
4. Plant Breeders Rights
If you are able to successfully breed new and distinctive plant varieties, you may be entitled to register IP rights over this breed.
Like trade marks, these rights are not granted automatically. Since the plant variety needs to be new to satisfy the registration requirements, it is important to seek advice to assess your legal position before publicly disclosing your plant breed. If you disclose your discovery too early, the opportunity to gain exclusive ownership may be lost entirely.
In Australia, copyright protection is an automatic form of IP protection. This means that you do not need to submit any painstaking applications, or pay any government fees.
Copyright protection covers ‘works’ that are creative and original, including literary works, broadcasting works, dramatic works, and works of craftsmanship, to name a few. In other words, if you created or authored the work, then you own the copyright in that work.
If you have outsourced any sort of work, it is important to check that your contractor’s contract stipulates that ownership of copyright in works created in the course of their employment is assigned (transferred) back to you. Failure to check this will mean that, by default, the contractor will own the copyright they create.
Copyright protection lasts for the life of the creator, plus 70 years. In cases where the duration depends on the year of publication of the work, it lasts until 70 years after it was first published.
6. Circuit Layouts
Circuit layouts are automatic rights granted to original layout designs of integrated circuits and computer chips.
Although these laws are based on the laws of copyright, circuit layouts are a distinct form of IP that is protectable in its own right. From the first commercial exploitation of a circuit layout, the owner will have 10 years of exclusive ownership rights.
To be valid, however, the first commercial exploit must take place within 10 years of the date of creation of the circuit layout. This means that the lifespan is, in some cases, more like 20 years.
- The subject matter of Designs, Patents and Plant Breeders Rights all must be new. As such, any sale, promotion or public disclosure of your patent, design or plant may forfeit your ability to seek protection. Get legal advice before you share your intellectual property with anyone, and, if disclosure is inescapable, make sure that the other party signs a confidentiality agreement.
- In general, intellectual property rights apply in all states of the country in which you are granted rights. As such, when looking to commercialise your IP in other international jurisdictions, it will be important to look into the filing and registration requirements of those countries. In certain cases, particularly with Designs and Patents, there are limitations on how much time you have to apply for registration overseas.
To be a successful young entrepreneur or start-up it is critical to understand, and be proactive, in safeguarding your rights and interests.
Obtaining IP protection and registration can be a complex and confusing process. Any mistakes made during the application stages can leave you unprotected, with an invalid protection and/or the need to redo the application, which may lead to further expenses.
The best approach is to seek advice from a legal professional who specialises in IP law early, and especially when lodging your applications and registrations. This way you can rest assured that your IP interests are water tight.
For efficient, high-quality and cost-effective advice visit:
- LegalVision website; or
- Ph: 1300 544 755