Intellectual Property – A Beginner’s Guide

Many Australian small business owners, entrepreneurs, inventors, artists and companies often forget about or do not appreciate the value of their often unrealised “non-physical” assets: their intellectual property (whether it be a business name, a trademark, a patent, a trade secret or copyrighted material) is incredibly valuable, more often than not, insufficiently protected and its loss, potentially catastrophic.

Wait – what is intellectual property?   Intellectual property is a group of legislative and common law rights affording protection to creative and intellectual effort and includes laws on copyright, design, patent, circuit layouts, plant varieties, confidential information, trade mark and business reputation.[1]  In short – intellectual property refers to new or original creations of the mind such as inventions, words, phrases, symbols, designs and ideas – it can exist in various forms.[2]  They are also creations which have a commercial value for individuals and businesses (although this is not strictly required).

What kinds of intellectual property are there?

A business name is the name, style, title or designation under which a business is carried out – it is a trading name only.[3]   A business name is only valid in the state(s) it is registered.

• Just because a party registers a business name does not mean that it will have proprietary rights for the use of the trading name.  If a party registers a business, company or domain name, the party will not have the automatic right to use that name as a trade mark.
• Before a party goes about registering a business name, it should be careful to ensure that it does not infringe on someone else’s trade mark. 

A trademark is a sign used, or intended to be used, to distinguish goods and services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person.[4] 

• Plainly put, a trade mark is a right that is granted over a word, phrase, letter, number, sound, smell, shape, logo, picture or packaging a party uses to represent its products and services.[5]  Parties will use a trade mark to distinguish their product(s) and / or service(s) from competitors.
• A trademark is initially registered for a period of 10 years and continues indefinitely as long as the renewal fees for the trademark are paid every 10 years.
• By registering a trade mark, a party will be able to ensure that it has exclusive rights to use the trade mark within Australia, to use the trade mark for commercial purposes, to assign, transfer or sell the rights to the trade mark to another business and to protect the trade mark if others try to use it.

A patent is a Crown grant by way of letters patent conferring upon the grantee exclusive rights, within Australia during the term of the patent, to exploit, and to authorise other persons to exploit the invention in respect of which it is granted.[6]

• Plainly put, a patent is a right granted for any device, substance, method or process, which is new, inventive and useful.[7]  A patent protects how an invention functions or works.
• There are 2 types of patents – a standard patent that gives protection for up to 20 years or an innovation patent that gives protection for up to 8 years.
• A patent gives, a party a monopoly right to stop others from manufacturing, using and / or selling their invention in Australia without their permission, be able to licence someone else to manufacture their invention and to enjoy the right to exploit the invention for the life of the patent.

A trade secret is any formula, pattern, device or compilation of information that is used in a person’s business and that gives the person an opportunity to derive an advantage over other persons who do not know or use it.[8]  It is not registered.

• A trade secret will protect any confidential information, including secret formulas, processes and methods used in production.
• A trade secret will not stop anyone else from inventing the same product or process independently and exploiting it commercially.  It does not give a party exclusive rights.

A domain name is a unique address on the internet which allows a party’s clients or customers to find it online.[9]

• Even if a party does not have a website when it first starts up, it should consider registering the domain name it has in mind in any event in order to ensure the domain address is available if and when it needs it.
• Registration of a domain name gives you exclusive use of an applicable internet address for an agreed period time.

Copyright is intangible property which allows the copyright owner, or those authorised by the copyright owner, the exclusive right to prohibit or to do certain acts.[10]

• Copyright protection attaches to a creation automatically and is free.  It attaches to original works such as art, literature, music, films, sound recordings, broadcasts, computer programs and databases.
• Copyright protects the owner’s original expression of the idea in question, but not the idea itself.
• Copyright(s) do not have to be registered for the ownership of a work to be asserted and protection received.

Registered design – A design is the appearance of a product that gives it a unique visual style – such as a logo, branding, packaging, new invention or new technology.[11]

• A registered design can be used to protect the visual appearance of a product (but not the way it works).
• Once a design right has been registered, the party who registered it will have exclusive rights to use it commercially, to licence it or to sell it.  The party will also be able to take action to stop other people from using the design after certification.
• Registration initially protects a design right for 5 years from the date the applicable application was filed.  The design registration can be renewed for a further 5 years, up to a maximum term of 10 years.  Once the registration has ceased, the design passes into the public domain and is free for others to use.

Lavan Legal comment

It is important for parties to understand what intellectual property they have created or what intellectual property is held or owned by them and that they have a base working knowledge of how protection of that type of intellectual property operates.  Lavan Legal can assist you in:

• identifying the intellectual property created by you and / or held or owned by you or your company;
• registering your intellectual property interest(s) (where applicable) or notifying applicable parties of your intellectual property interest(s);
• sharing or licencing your intellectual property right(s) with other parties for commercial gain; and
• developing mechanisms or systems via which to protect and secure your intellectual property interest(s).

Iain Freeman and Mathea McCubbing