What happens when the lightbulb above your head switches on? You have a life-changing idea, one so good that other people might want to claim it as their own. But, how do you protect your idea? While it is a common misconception that intellectual property (IP) law protects your ideas, IP law can protect the 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.
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 work to fall under the copyright protection, it must be original. While it does not need to be artistic or good, it must not be a copy. Further, there must have been some skill and effort involved in creating it.
For example, copyright can protect a:
- painting; or
There is no formal registration process for copyright in Australia as rights are automatically granted to the creator for their life plus 70 years.
However, copyright does not protect your idea. Therefore, it does not stop someone from using your idea and expressing it differently.
A patent protects inventions relating to:
- materials; or
A patent can protect any invention, from a cheese slicer to a mobile app. It provides the owner of a patent with legally enforceable rights to exploit their invention commercially. Eligibility for patent protection depends on your invention being new, useful and 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, if you receive patent protection, you have a monopoly over that invention for up to 20 years.
Design registration protects the features of a product that gives 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 of that idea.
A trade secret consists of any secret commercial information that provides a business with an advantage over another. Trade secrets include manufacturing methods, product formulas and business strategies. Most famously, Coca-Cola and KFC have protected their recipes through trade secrets.
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 potentially 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.
While you cannot protect mere ideas, turning your idea into something more tangible can provide you with protection. You may wish to 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 your ideas, get in touch with LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.
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