The 4 Main Areas of IP Law
Intellectual property (IP) is one of your most precious commercial assets. Protecting your IP deters competitors from using your branding, inventions, designs or confidential information to take customers and market share away from you. This article will explain four important areas of IP law, allowing you to understand how each interacts with your own IP portfolio. The four areas are:
- trade marks;
- patents; and
- design registration.
In Australia, copyright is automatically protected. You don’t need to register copyright. From a policy perspective, this is because creations that benefit society should be encouraged and legally protected.
Copyright protects literary, dramatic, musical and artistic works, such as:
- computer software;
- paintings; and
Copyright protection gives you the exclusive right to publish, reproduce, adapt and distribute these works. It prevents others from using your work as their own and allows you to take legal action if this happens without your permission. Protection usually lasts for the author or creator’s lifetime, plus 70 years after their death.
However, it’s important to note that copyright generally does not protect:
- ideas (copyright protects a material expression of an idea rather than an idea itself);
- titles; or
If you have a business name, logo or slogan you want to protect, you should register them as trade marks.
Trade marks are an important part of any brand protection strategy. A trade mark is a sign used to distinguish goods and services from other those other businesses. It can be in the form of a:
- sound; or
- combination of these elements.
In most cases, trade marks are represented by names (or words) and logos.
Many businesses view their trade mark registrations as one of their strongest marketing tools because, collectively, these marks represent an overall brand identity. Registering a trade mark is an effective way to legally protect your brand and have enforceable rights against any competitors that attempt to use your marks, or marks deceptively similar to yours. The registration process is through IP Australia and takes at least seven and a half months to complete.
Patents can be granted for a device, substance, method or process which is considered new, inventive and useful. A patent is a legally enforceable right that allows the patent-holder to commercially exploit an invention for the life of the patent. This monopoly of an invention can be extremely key to a business’ success. If you secure exclusive commercial rights to an invention, you can quickly gain market share and a reputation within the industry.
It’s crucial to avoid publishing, presenting or disclosing your invention to anyone before it’s patented, in order to ensure it doesn’t become public knowledge. IP Australia has strict rules in this regard: if you’ve told others about your invention, and it’s therefore ‘public knowledge’, you may not be able to achieve patent registration. These safeguards also help you to have enough time to bring your invention to market and lower the risk of copycats knocking off your idea and marketing it as their own.
Of course, you may need to talk to others about your invention for research or manufacturing purposes. In these situations, anyone who knows about your invention should sign a non-disclosure agreement.
As the patent-holder, you have the authority to make, sell, or use the invention for the life of the patent.
A requirement for patent eligibility is that the invention must be unique and inventive or innovative within its industry. Australian patent applications are assessed uniformly by IP Australia.
There are two types of patents:
- standard patents; and
- innovation patents.
Each provides a different duration of protection.
Standard patents provide long term protection of up to 20 years. A standard patent is applicable for inventions that are:
- new and inventive: your invention is not an obvious step to improvement for anyone within the industry of the invention;
- considered useful: anyone within the industry of the invention would immediately appreciate why your invention is useful based on its characteristics; and
- capable of being made or used within an industry.
Therefore, IP Australia is more likely to grant a patent if the invention is something revolutionary within its industry.
Innovation patents provide the same type of protection afforded to standard patents, however the protection is provided for a shorter duration of up to eight years. This shorter duration is useful for industries where new inventions are likely to be registered regularly, such as fast paced, tech-driven industries.
An innovation patent has a lower threshold of eligibility than a standard patent. An innovation patent simply needs to involve an innovative step: a substantial difference in the way an element of an invention works. In contrast, a standard patent must also be ‘inventive’.
When compared with the standard patent, the innovation patent is less expensive to apply for. Additionally, an innovation patent can be granted without examination by IP Australia. Despite this, you cannot enforce an innovation patent in court until an examination takes place.
Design registration protects the aesthetic features of a product, such as the:
- pattern; and
To be registrable, a design must provide a product with a unique appearance. Additionally, it must be new and distinctive compared with prior art at the time of the application. ‘Prior art’ consists of any design that has already been registered or publicly used anywhere in the world.
What is ‘New’?
A design is considered new if it’s not too similar to another design in the prior art base. In some cases, you may need legal advice on whether your design is truly ‘new’.
What is ‘Distinctive’?
A design is considered distinctive where it’s not too similar to another design that has already been registered or used publicly. For example, if you design a mobile phone that looks exactly like an iPhone, you wouldn’t pass the test of distinctiveness.
If your design isn’t distinctive, it’s unlikely you’ll be able to register it successfully.
Your IP rights belong to you and it’s important to ensure they legally remain your property. Your brand name and logo will benefit by trade mark protection, while registering patents and designs can protect your projects and long-term business goals. Your commercial success may depend on how well you protect your suite of IP.
As your business flourishes, your IP becomes all the more valuable and protection becomes even more crucial. To find out how to protect your brand, get in touch with LegalVision’s IP lawyers on 1300 544 755.