Intellectual Property (IP) is the term given to ‘creations of the mind’. Owning intellectual property gives you the exclusive right to use and enforce the rights to your creations which may be intangible or tangible. There are four main categories of IP. These are copyright, trade marks, patents, and designs. Business owners should be aware of the various types of IP and how they can be protected. This article will highlight these rights and their relevance to small businesses.
Categories of IP protection
1. Copyright
In Australia, copyright is a free and automatic right granted to creative works, including literary or artistic works such as books, paintings, photographs and computer source code. Alternatively, it can apply to a broader subject matter, such as sound recordings, films, or broadcasts.
Enforcing copyright on your material allows you to stop third parties from publishing, modifying, adapting, or otherwise using the protected material without your permission. In Australia, you do not need to formally register your copyright to enforce it.
2. Trade Marks
A trade mark acts as a ‘mark of trade’. It is a badge of origin applied to the goods or services a business provides so that consumers can identify who made or delivered them. In most cases, a trade mark will be a name, slogan, or logo, but it can also be a sound, shape, smell, colour, or aspect of packaging.
Trade marks can either be registered or unregistered. Registering a trade mark provides additional rights to the owner of the trade mark, such as the right to enforce the trade mark using the provisions of the Trade Marks Act 1995 (Cth). It is important to remember that not all trade marks are registrable. A trademark must be distinctive to fill its function as a badge of origin.
3. Patents
A patent is a government-granted monopoly right to ‘exploit’ a particular invention.
It is essential to remember that ideas or discoveries are not patentable – the invention must be a ‘manner of manufacture’. Whether or not an invention satisfies this requirement can be a difficult question, particularly for computer-based inventions.
4. Designs
A registered design protects the visual appearance of a product and not its functional aspects. The most common examples are:
- clothing such as a dress pattern;
- furniture designs such as the look of a chair; or
- the configuration of a handbag.
For a design to be registered and protectable, it must satisfy a newness requirement similar to that which applies to patentable inventions.
What IP Can a Small Business Register?
As a small business owner, it is critical to establish the IP owned by the business and the value of these assets as registered rights. In addition, a growing business may find it worthwhile to register a trade mark for the business name itself. Other trade marks may include slogans, product names or logos.
Secondly, businesses will most likely be entitled to enforce their rights concerning copyright, whether it is:
- the content on a website;
- promotional or marketing material such as catalogues, flyers or photographs;
- documents or other material produced for customers;
- internal documents; and
- software developed in-house.
In some cases, businesses may also develop new technology that may be capable of protection by a patent. As mentioned above, this will be the case where an invention is:
- new;
- inventive (not obvious);
- capable of commercial application; and
- a ‘manner of manufacture’.
Lastly, businesses may be interested in registering designs of products they may produce. As noted above, registered designs protect the visual appearance of a product, not its functional aspects. Therefore, businesses should carefully consider what IP they choose to protect and subsequently own. If there is any doubt, consult a professional to help them determine what IP they own and how to best protect it.
Continue reading this article below the formWhat If I Do Not Protect My IP?
Overall, IP is an important part of a business’s value. Therefore, it is important to maintain and enforce your rights concerning it. In the case of copyright, protection exists automatically, so protection involves carefully monitoring for infringement and addressing it if copyright infringement does arise.
Where the IP is a trade mark, a trade mark is not required to be registered. However, a trade mark will be much easier and less expensive to protect if registered. Protection of an unregistered trade mark relies on the business’ established reputation in respect of the trade mark. In contrast, you do not need to establish a reputation in the case of infringement of a registered trade mark.
In the case of patent and design registration, business owners should carefully consider the commercial value of their design or invention. For example, suppose the newly created design or invention is likely to be commercially successful, and other parties may seek to duplicate the design or invention. In that case, it may undoubtedly be worthwhile registering a design or patent.
Many businesses carry on for many years without registering their trade marks. In some cases, third parties have been able to capitalise on this and develop their own competing products or brands that would have otherwise infringed a registered IP interest. Therefore, assessing the cost of protection against the likelihood and cost of infringement is an important commercial decision for business owners to make.
Your business’ brand represents your values, identity and reputation. Learn how to create a successful brand and protect it.
Cost of Protecting Business IP
The cost of protecting IP varies depending on the type of IP and the complexity of each case. Costs can be incurred in:
- registration;
- monitoring;
- enforcing infringement; and
- renewals.
There are applicable government fees to register trade marks, patents and designs and an ongoing renewal fee that you must pay to maintain the registered rights in these areas of intellectual property. Fees for registering these rights vary significantly. Suppose you are considering filing a trade mark, design or patent application. In that case, it is vital to develop a roadmap with a legal professional detailing the possible routes towards registration and the costs along the way.
Out of all the IP rights, only copyright remains a free right with no cost to obtain protection. However, business owners should ensure that copyright protection is enforced within contractual agreements and through disclaimers.
Key Takeaways
Protecting your IP is vital as a small business owner with a growing brand. Enforcing your registered rights is the necessary, active step to take once you have registered a design, patent or trade mark. As mentioned, copyright does not need to be formally registered to be enforceable.
If you need help with your 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
In Australia, copyright is a free and automatic right granted to creative works, including literary or artistic works such as books, paintings, photographs and computer source code. Alternatively, it can apply to a broader subject matter, such as sound recordings, films, or broadcasts.
The cost of protecting IP varies depending on the type of IP and the complexity of each case. Costs can be incurred in the process of registration, monitoring, enforcing infringement and renewals.
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