Intellectual property (IP) is the property of your mind or proprietary knowledge and can be an invention, a trade mark, a design or the practical application of your idea.
It is important that you understand how to protect IP as it is a valuable business asset and it will usually be easier and cheaper taking enforcement action following a breach of your rights if they have been protected “up front”.
In this article we provide an overview of the different types of IP and look at the basics for protecting your IP rights.
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 and/or services from those of other traders.
A trade mark identifies the particular goods or services of a trader as distinct 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.
If you do not register your trade mark, you will need to rely on protection through legal action, such as passing off under common law or misleading and deceptive conduct. 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. A website will have copyright as the text, any images and the computer coding, among other things. 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 selling a business to ensure that any asset in which copyright subsists is yours 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 and/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 & Confidential Information
Any information that is not known publicly is confidential information.
For a business this can include customer lists, business and marketing plans, internal business processes or formulas for products. Business ideas that have not been openly discussed can also be considered confidential information.
There is no registration process for trade secrets or confidential information, and they are normally protected via contracts, agreement and management procedures. In general, the owner has the exclusive right to use, sell or license the IP.
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-transferable. 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 IP
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 & Duration
Registered IP rights usually provide you with exclusive rights. Each IP 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 it 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 IP 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 IP right that is automatically recognised in the global market. All other forms of IP 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
IP 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.
Conclusion
IP is a valuable business asset, protecting it should be standard business practice forming part of the overall business plan. Understanding the rights that exist and the methods available for protecting IP is the first step to creating greater value in a business.
For more information regarding the purchase of a business, see our other articles; Important Things to Consider When Buying a Business and Choosing a Business Structure.
For more information on protecting your IP rights please contact Tetlow Legal on 02 6140 3263 or [email protected].