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What happens when you have a life-changing idea so good that other people might want to claim it as their own? How do you protect such an idea? While it is a common misconception that intellectual property (IP) law protects your ideas, IP law protects the further development of an idea. If you express your idea beyond the initial spark, certain aspects of IP law, such as copyright, patents, designs, or trade secrets, can provide you with protection. This article explores how you can protect your idea through intellectual property.
Your business’ brand represents your values, identity and reputation. Learn how to create a successful brand and protect it.
Copyright
Copyright protects the expression of ideas. It grants an owner exclusive rights to exploit their original work and use it in any way they wish. However, for the work to fall under copyright protection, it must be original. While it does not have to be ‘good’, it must not be a copy of another idea. Further, there must have been some skill and effort involved in creating it.
For example, copyright can protect a:
- book;
- poem;
- movie;
- script;
- painting; or
- photograph.
There is no formal registration process for copyright in Australia, as the rights automatically arise when the work is created. Furthermore, the rights are granted to the creator for the duration of their life plus 70 years.
However, copyright does not protect your idea. Therefore, it does not stop someone from expressing it differently.
Patents
A patent protects inventions relating to:
- products;
- methods;
- apparatus;
- materials; or
- processes.
A patent can protect any invention, from a cheese slicer to a mobile app. It provides the patent owner with legally enforceable rights to exploit their invention commercially. Eligibility for patent protection depends on your invention being:
- new;
- practical;
- inventive; or
- innovative.
Unlike copyright, you must apply for a patent with IP Australia to gain rights. This process can be both complex and expensive. However, you have a monopoly over that invention for up to 20 years if you receive patent protection.
Continue reading this article below the formTrade Marks
A trade mark is a sign used by businesses to represent their business and brand in the marketplace. Further, it distinguishes its goods and services from those of its competitors.
Examples of common trademarks include:
- logos;
- business names;
- names of products or services; or
- a business’s slogan.
Registered trade mark rights offer protection over essential brand elements, which is how consumers view or recognise your business and the goods and services you offer. Under trade mark law in Australia, a registered trade mark gives you the exclusive rights to use your mark and license and authorise the use of your trade mark rights.
Design Rights
Design registration protects the features of a product that give it a unique appearance. For example, you may have designed an aesthetically distinctive chair or glassware. Like patents, you must register your design with IP Australia. To register your design, it must be new and distinctive. Therefore, it cannot be identical to another design or substantially similar in its overall impression.
Upon registration, you have exclusive rights to commercially exploit designs that have an industrial or commercial use for up to 10 years. Like copyright, patents and design rights do not protect your idea, but they can protect an embodiment and material expression of that idea.
Trade Secrets
A trade secret consists of any secret commercial information that gives a business an advantage over another. Trade secrets include manufacturing methods, product formulas and business strategies.
The advantage of a trade secret is that, unlike other protections, it protects an idea and information rather than the expression of the idea. A further advantage is that there is no time limit on the protection; it lasts for as long as you maintain secrecy. Therefore, it can receive protection forever!
You can maintain a trade secret through contractual arrangements. For example:
- restraints of trade;
- non-disclosure agreements; or
- specific clauses in employment or service agreements.
You can also maintain a trade secret by taking action for a breach of confidence.
Key Takeaways
While you cannot protect mere ideas, turning your idea into something more tangible can enable you to obtain protection. You can develop your idea and register it as a design or patent through IP Australia. Expressing your idea also allows for automatic copyright protection. Further, you can protect your idea as commercial information or trade secrets via contracts or by taking action for a breach of confidence. If you have a great idea, you may need to develop or express it to obtain protection through IP rights.
If you have any questions or need assistance protecting the expression of your ideas, 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
Although you may not be able to protect a mere idea, you may be able to protect the material expression of that idea through trademarks, patents, copyright, design rights or trade secrets.
Copyright refers to the automatic protection of the expression of original ideas. Copyright does not protect the ideas themselves. Instead, it protects the material expression of ideas.
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