There are different types of intellectual property which are important for owners to consider when starting or running a business:
Unregistered intellectual property rights
The first type of intellectual property rights is what we call unregistered intellectual property rights.
Copyright is a first form of an unregistered intellectual property right. In Australia, copyright doesn’t need to be registered and arises automatically to the first author.
Copyright protects against the copying of an owner’s original expression of ideas which may take the form of music, literary, art, drawing, broadcast, film and computer programs.
However, there are a number of important disadvantages of relying on copyright protection.
Firstly, as its name suggests, copyright only protects against the copying of the ideas. As such, copyright will not protect you against others who create the same ideas.
Furthermore, while copyright may vest in artistic works and the like, copyright falls away when an item is mass produced. As such, if you have a novel mechanical design or the like, you would lose your copyright protection in the design if it were mass produced.
Copyright falls away when an item is mass produced
A further form of an unregistered intellectual property right is trade secrets and confidential information.
Specifically, for confidential information, it is usual in business to require a third party to sign a nondisclosure or confidentiality agreement.
However, nondisclosure and confidential agreements have disadvantages in that the contract is operative only between parties and if for example, the recipient of confidential information were to disclose information to a third party you may have little recourse unless you could prove the breach. This is very important when considering whether to disclose inventions to investors and the like prior to filing a patent application.
Confidential agreements are operative only between parties
Registered intellectual property rights
Now, the second type of intellectual property right is what we call registered intellectual property rights. This is because these rights are registered in an IP register for inspection by the public.
A first form is registered design protection which protects the visual appearance of a product. The requirement for registered design protection is that the design be new and distinctive in light of other designs.
In Australia, registered designs last five years, extendable to 10 years.
It is important to note that registered designs protect the visual characteristics of a design, but generally not the way the design works.
To protect the way something works one would need another form of registered intellectual property protection: patents. Patent rights are generally the most potent form of IP rights when it comes to inventions an, if granted, provide 20 years of monopoly.
Registered design protection protects visual characteristics whereas patent protection protects functional characteristics
The requirements for patent protection on novelty and inventive step (i.e. non-obviousness). However, even for obvious improvements one may still obtain enforceable patent protection by way of the utility model patent such as the innovation patent in Australia.
Generally only physical, concrete and tangible inventions are eligible for patent protection. Business methods and the like are generally excluded from patent protection. When comes to patent protection for software, this is a continuously evolving area of patent law and if you have a software related invention it is highly recommended that you speak to a patent attorney who specialises in software related inventions.
The third type of registered intellectual property right is trade mark. Trade marks can be used to protect any sign which is used to distinguish your goods and services from other traders. Generally, trademarks are used to protect logos, words and slogans, but can also extend to sounds, scents, aspects of packaging and the like.
Registered trademark rights give business owners two important rights.
A first important trademark right is the right to use the trademark. In other words, prior to launching new business ventures we recommend that business owners go through the trademark process to obtain this freedom to operate. In Australia, trademark examination can be performed within a week and is recommended especially prior to investing in marketing, branding and the like for the proposed trademark.
A second important trademark right is the right to stop others using the same or deceptively similar trademarks. By having a trademark, you are eligible to utilise the remedies of the trade marks act for trademark infringement.
Trade mark registration gives the right to use the sign and also the right to stop others using deceptively similar signs
As you can see, there are different aspects of intellectual property which may be protected to provide business owners with the time and incentive to profit from their ideas. Many business owners do not realise the value of the intellectual property and unfortunately expose themselves to loss of their IP through in adequate protection. If you believe you have IP with protecting, we highly recommend that you get in touch with us to discuss this further.
