There are multiple types of intellectual property rights. Depending on what you are trying to protect, your business will likely need to rely on several different types. This article will explain:

  • what the different types of intellectual property are; 
  • when you may need to use them; and
  • how to register for each type. 

Copyright

Copyright is a type of intellectual property (IP) right that protects the original expression of ideas or subject matters in a material form. Most businesses will own copyright, whether it is the content on a website, marketing material, or software developed in-house.

Other common forms of work that are protected by copyright are:

  • books;
  • drawings;
  • paintings;
  • photographs;
  • music;
  • films; and
  • computer programs.

In Australia, copyright is governed by the Copyright Act 1968 (Cth) and is a free and automatic right to use and exploit the creative work. It is not necessary to register copyright in Australia.

However, it is important to understand that copyright does not protect ideas themselves. For works to be protected, the work or subject-matter must “originate” with the author and not be derived or copied from someone else. Further, the idea must be expressed in a material form before it can be protected by copyright.

For example, a new story idea for a book will not have copyright protection. However, the moment the idea is documented, it will automatically be protected by copyright in Australia, including the text of the book when written down.

As an owner of copyright, you will have the exclusive right to use the creative work, including the right to:

  • reproduce the work;
  • publish the work;
  • perform the work in public; and
  • adapt the work.

It is also your responsibility as the creator to monitor potential infringers and enforce your rights. This will ensure that your copyright work retains its value, especially if the work is commercialised.

While it is not mandatory in Australia, you may consider having a copyright notice on your work (e.g. © Mary Smith 2020) to indicate that you are the owner of the copyright and deter potential infringers.

Depending on the form of work, copyright protection generally lasts for the life of the creator plus 70 years.

It is also important to remember that copyright laws differ from country to country. You should consider the requirements for copyright protection in other countries if you intend on reaching an international market.

Trade Marks

Trade marks can protect any marks that you use to distinguish your business from another. They will often be some of the most valuable IP that a business owns.

In most cases, a trade mark will be a business name and logo, but can also be a:

  • word;
  • letter;
  • number;
  • slogan;
  • picture;
  • sound;
  • scent; or
  • colour.

There are two key requirements to qualify for trade mark protection, amongst other criteria.

First, your mark must be unique and distinctive, rather than purely describing what your business provides. 

For example, a furniture business could not protect the name “Your Local Furniture Warehouse” with a trade mark as: 

  • it describes the goods and services they provide; and 
  • other traders will need to use these words in connection with their business.

Second, your mark must not be identical or similar to an earlier trade mark within the same or a similar class of goods or services on the Australian Trade Mark Database. 

For example, if you want to register a trade mark for “Aqua Skin” for cosmetics under class 3 and there is an existing trade mark for “AQUA” under the same class, this will make it difficult to register your trade mark.

As a registered trade mark owner, you will have an exclusive right to use, license and sell the mark. This also means that you will have the right to stop someone else from using the same or a similar trade mark, especially if you believe it will create confusion in the market.

In Australia, the trade mark registration process takes around seven and a half months and involves multiple stages. Once registered, your trade mark will be protected for an initial period of ten years.

Business Name

A business name is the name under which your business will operate. Choosing the right name is an important decision as customers will use it to identify and distinguish your business from others.

In most cases, you will need to register your business name with the Australian Securities and Investments Commission, unless you decide to trade under your personal name.

However, it is important to be aware that registering your business name does not stop another business from using the same name. To have exclusive use of your business name, you will need to register the name as a trade mark (as discussed above). Generally, it is much easier to stop someone from using the same or similar business name to you if the name is a registered trade mark.

Domain Name

A domain name is the address of your website and the face of your business’ online identity. In most cases, domain names for businesses will reflect the registered business or company name. Otherwise, customers may find it confusing if your online and offline names are different.

For example, if your business name is “Your Plants and Garden Centre” but your domain name is “gardencentre.com.au”, this may confuse customers and make it difficult for them to find you online. Accordingly, you should check whether your proposed business name is available to register as a domain name, especially if you are planning to have a business website.

Once you have decided on a domain name, you will need to register your domain name through a registrar or reseller listed on the .au Domain Administration Ltd (.auDA) website.

While having a registered domain name provides you with a license to use the name, you will not have an exclusive right to use the domain name unless it is registered as a trade mark (similar to business names).

In particular, you should register your domain name as a trade mark if you intend to trade as the domain name.

Some examples of popular domain names that are protected with a trade mark are:

  • realestate.com.au; and
  • AMAZON.COM.

You should also ensure that the trade mark applicant and domain name owner are the same person, otherwise IP Australia may refuse your application.

Key Takeaways

There are several different types of intellectual property. Depending on your business’ needs, you will likely need to use more than one of these types of intellectual property rights. You will need to go through a registration process for most of them. If you have questions about protecting your business’ intellectual property rights, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

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