IP and Trademark — why it’s important
IP rights and ownership can exist in many forms, but it basically gives you legal protection over your creations and brand. Our legal expert explains.
You’ve spent years building up your business and its brand so that you stand out from the competition and offer your customers a unique point of difference.
But without Intellectual Property (IP) and Trademark protection, you could face the daunting prospect of your business’s name, logo, design and patents being copied without any legal recourse available to you.
Whether you’re a small or medium-sized business or just starting out, here’s what you need to know so you’re not left exposed:
What is Intellectual Property (IP) and a Trademark?
IP rights and ownership can exist in many forms, but it basically gives you legal protection over your creations and brand.
Some IP does not have to be registered with IP Australia and can be agreed upon in contractual arrangements.
Some forms of IP include:
Notably, IP and the rights that are given with IP do not cover a business registering their business name (ABN) or company name (ACN), as this form of registration does not give the exclusive right to use the name, unless it is a registered IP such as a trademark with IP Australia.
For many businesses, your brand is an important part of your business identity.
Whether it's a reference to your logo, slogan or even a colour scheme, the best way to protect these distinctive elements of your business brand is by registering a trademark.
CCIWA Commercial Lawyer Daniel Vivian says: “If you don't have a registered trademark and another business replicates your unique brand, you have no enforcement right over them.”
He further provides that a registered trademark gives you the ability to assert or enforce an exclusive right against others who use marks that are similar to or exactly like the registered trademark of your business.
For businesses to have a right over their trademark, the trademark must be registered with IP Australia.
Our Corporate and Commercial Legal Services team can assist with:
- Registering and lodging trademark;
- Enforcing a trademark right;
- Defending a claim; and
- Transferring IP rights between businesses
Copyright is an IP that is automatic and provides protection when an owner’s original expression of ideas or creative concepts are documented electronically or on paper. Copyright can be in the form of books, art, film, computer programs, drawings, music and broadcasts.
Our team can assist with:
- Assessing copyright work; and
- Advising in a copyright infringement or dispute.
A design is a right that protects the overall visual appearance of a product, through its distinctive visual features that are different to others. This differs from trademarks as design does not give protection without a physical form and does not protect a brand name or logo.
To protect a design and to enforce a right over a design, it must be registered and certified with IP Australia.
Our team can assist with:
- Registering a design and providing advice on whether it meets the requirements set out by IP Australia;
- Enforcing a right over the design;
- Defending a claim against a design; and
- Transferring any design IP rights.
Other forms of IP
Vivian says IP can also be created and enforced by way of a contractual agreement, either in circumstances between businesses or between a business and an individual.
“Some businesses when entering into a new contract or agreement may want to ensure that their IP is sufficiently protected and therefore either have a clause dedicated to IP or they may enter into an Intellectual Property Licence Agreement,” he says.
“Our team can help members if they need advice in this area or need an agreement drawn for their specific needs.”
How long does it take?
If you think the provisions around IP and Trademark law are complex, you’re right.
Vivan says it’s not a straightforward process, with the registration process for trademarks often taking six to 12 months.
“You really have to do your research into whether you have a unique trademark to be able to register it,” he says. “And then, of course, you're open to opposition and also rejection from IP Australia.”
“But it’s about brand protection. If you have created such a great brand, you need to protect it as that is where your business value comes from."
He adds: “Whatever the size of your business, you need to get on the front foot.”