Introduction to intellectual property
Most businesses have some type of intellectual property (IP) – a unique idea or creative concept – they need to protect from use by others. Australia has extensive laws to protect such IP as inventions, shapes and symbols, names and images.
The appropriate type of IP protection depends on how the idea or concept will be applied.
Patents provide IP protection for innovative inventions, preventing them from being legally copied. For start-ups and other innovators, patents are a key asset that provides the exclusive right to manufacture, sell, license and distribute their idea.
Obtaining a patent also allows a business to more easily attract investors, secure licensing royalties and sell and cross licences for the technology. There are two types of patent available in Australia:
- Standard patent: Provides long-term protection and control over an invention for up to 20 years from the day the application is lodged. To obtain a standard patent, an invention must be new, involve an inventive step and be able to be made or used in an industry.
- Innovation patent: This is a relatively quick and inexpensive way to protect an advance on existing technology rather than a completely new invention. It Requires an innovative step rather than an inventive step, defined by IP Australia as existing “when the invention is different from what is known before and the difference makes a substantial contribution to the working of the invention”.
Trademarks are used as a unique way to distinguish a company or product from that of competitors. They can appear in the form of a logo or one or a combination of words, letters and numerals. Trademarks can also exist in the form of:
- sound (for example, the vocal harmonisation of the letter ‘O’ followed by the word ‘O’BRIEN’ in the Windscreens O’Brien adverts).
- scent (the smell of Play-Doh) and taste
- shape (logos)
- movement (Toyota’s leaping figure)
- colour (Cadbury’s purple, John Deere’s yellow and green as well as the pink skin colour of Barbie dolls)
- plant material (relates only to the source of the plant material, such as the grower, producer or seller) and
Registering a trademark gives the owner exclusive right to use, licence and sell it. Unauthorised use of that trademark by another business is contestable in court.
It is important to realise that registering a business name with the Australian Securities and Investments Commission does not give you exclusive right to use that name as a trademark. You need to also register it as a trade mark with IP Australia for exclusive use.
Artwork that is not applied to a product or package is automatically protected by copyright. However, a design that is applied to a product or package can be registered to prevent unauthorised use if it:
- differentiates the product from others and
- is for industrial or commercial use.
Examples of registered designs are the Coca-Cola bottle, Croc sandals and car bodies.
You cannot use a registered design to protect how a product feels, the materials it’s made of or how it works.
In Australia, copyright automatically protects an idea or creative concept that is committed to paper or electronically by authors, film/video makers, musicians, sound recorders, artists, designers and publishers. Works that are protected by copyright include books, films, music, sound recordings, newspapers, magazines, artwork and web content.
New software can also be protected by copyright as an original literary work if the author can demonstrate they have created the software without copying other work.
Circuit layout rights
Original layout designs for integrated circuits and computer chips are protected under the Circuit Layouts Act 1989. The rights are automatically protected and do not have to be registered, giving the owner the exclusive right to:
- copy the layout in a material form
- make integrated circuits from the layout
- exploit it commercially in Australia.
Plant breeder’s rights
New plant varieties that are distinct, uniform and stable can be protected by IP rights for exclusive production, sale and distribution.