5 Most Important IP Assets to Protect

In Short

• Trade marks protect your business name and identity, offering exclusive rights to use, license, and sell your brand.
• Patents safeguard new, inventive products or services, preventing others from using or commercialising your invention.
• Designs protect the unique visual appearance of products, helping to prevent competitors from copying your design.

Tips for Businesses

Consider registering key IP assets early to prevent future disputes and enhance your brand’s value. A trade mark can protect your business identity, while patents and designs ensure your unique products or services are safe from exploitation. Trade secrets and copyrights can also be crucial, depending on your business’ offerings.

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Table of Contents

• 1. Trade Mark
• 2. Patent
• 3. Design
• 4. Trade Secret
• 5. Copyright
• Key Takeaways
• Frequently Asked Questions

If you are starting a new business, you may have a wealth of intellectual property (IP) that you have not yet considered. IP is an umbrella term for the creations or property of your mind. For the long-life success of your business, it is vital to protect your IP to prevent others from using your valuable assets. This article will discuss five of the most critical IP assets to protect for your new business.

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1. Trade Mark

One of the first decisions that you will make for your new business is choosing a business name. While registering a business name with the Australian Securities and Investments Commission (ASIC) gives you a right to use that name, it does not give you the exclusive use of the name. It also does not provide the right to stop another business from using the same or a similar name. Instead, exclusive protection comes from registering the name as a trade mark. This table provides an overview of the key features of a trade mark:

A trade mark is a crucial part of your brand and business identity. Furthermore, it will increase in value as your business grows and succeeds.

To apply to register a trade mark you must submit an application with IP Australia, the governing body that assesses trade mark applications. 

It is important to note that trade marks are territorial. Suppose you plan to expand your business overseas. In this case, you must apply to register your trade mark in each country or region within which you plan to do business. The simplest and most cost-efficient way to apply to register your trade mark internationally is through the Madrid Protocol. 

2. Patent

While a trade mark protects your brand identity, it does not protect the product or service that you provide. Therefore, if you have created a product or service that is new and inventive, you may wish to protect your invention with a patent.

A patent provides you with the exclusive right to capitalise on your invention for a set period of time. This means that, without your consent, others cannot use your invention by:

• making it;
• selling it;
• using it;
• importing it; or
• otherwise commercialising it.

The table below provides an overview of the key features of a patent:

If your new business revolves around a new and inventive product or process that you want to commercialise, registering a patent may be the best way to prevent others from exploiting your invention. You can apply for a patent in Australia by filing the desired application with IP Australia. The application should include:

• drawings;
• descriptions;
• specifications; and
• claims regarding the novelty and uniqueness of your invention.

Depending on the complexity of your invention and which patent you apply for, the entire registration process can take anywhere from a few months to a few years.

3. Design

If you are selling a product that has a distinctive and unique visual appearance, you may consider protecting it with a registered design. The table below provides an overview of the key features of a registered design:

If the visual appearance of your product substantially contributes to its uniqueness, then you should protect this with a registered design. Subsequently, this will help in preventing others from copying your design and producing ‘knock-offs’ without your permission.

After ensuring that you meet the eligibility requirements, you can register your design online through IP Australia. The application must include drawings and images that demonstrate the visual features of your design. You will also need to describe the unique aspects of your design. Once registered, your design will be protected in Australia for five years, with an option to renew for a further five years.

4. Trade Secret

Any confidential business information that gives your business a competitive advantage should be treated as a trade secret. This may include products and processes that do not have patent protection. The table below provides an overview of the key features of a trade secret:

Unlike the IP options previously discussed, a trade secret is not something that is ‘registered’. They are usually protected through a contract, such as a non-disclosure agreement (NDA) or employment agreement.

For example, before engaging an app developer to create your app, you may have them sign an NDA that prevents them from disclosing or misusing any confidential information that you provide. Without the appropriate contract in place, your trade secret could be misused without any legal consequences. This could severely damage your new business before even launching.

One of the most famously guarded types of trade secrets is the formulas used to create well-known fragrances. Insufficient safeguarding of fragrance formulas through an NDA can leave a fragrance house vulnerable to copycat formulas and may cause significant economic damage.  

5. Copyright

If you create an original work as part of your new business, these will automatically be protected by copyright in Australia. The table below provides an overview of the key features of copyright protection:

While copyright protection is free and automatic, it is your responsibility as the creator to monitor potential infringers and enforce your rights. One way to enforce your copyright protection is to have a copyright notice on your work (e.g. © Julie Smith 2019).

In terms of international copyright protection, under the Berne Convention, member countries have agreed to extend the same copyright protection to works from other member countries. Copyright protection is automatic in all member states and arises as soon as a work is fixed in a tangible medium. 

Key Takeaways

Your IP will be one of your business’s most important assets. There are several different types of essential IP assets, and it is critical to protect them to protect your overall brand. Some necessary forms of IP protection include:

1. trade marks;
2. patents;
3. designs;
4. trade secrets; and
5. copyright.

While these different types of IP will not apply to every business, you should prioritise them according to which protections will add the most value and longevity to your business. 

If you have any questions about your business’s IP, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

If my IP is protected in Australia, is it protected overseas?

Not necessarily. Some protections, like copyright, are automatic. But for your trade mark, patent, and design to have protection overseas, you will need to apply for registration in each country in which you would like protection. 

What is a ‘priority date’ and why is it so important?

When applying to register your trade mark, patent, or design, the date you file your application becomes your ‘priority date’. If two different businesses apply to register similar IP at the same time, the first one to apply will usually have priority and obtain the relevant IP rights in Australia.