Intellectual property refers to creations of the mind, including literary works, artistic works, names, images, designs and tangible inventions. You can protect these creative works via trade mark registration, copyright, patents and designs. These avenues of protection allow individuals to protect rights associated with their creative endeavours. Artists and creatives, in particular, should consider protecting their ideas to enforce these rights against third parties. Below, we set out our top four tips for how creatives can protect their intellectual property.
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1. Consider Your IP’s Origins
One of the current issues affecting the creative industry is rampant intellectual property exploitation in the textile and design areas. For many Indigenous artists and local designers, making traditional artwork and textiles is a significant source of income. Unfortunately, cultural appropriation of these works can negatively affect these communities, both economically and socially, as it undermines the abilities of local artisans to earn a living.
Therefore, it is essential to consider the origin of your designs and ideas. To successfully protect and enforce your IP, ensure your ideas are original so that you do not infringe on the rights of others (whether these rights are inherent or explicit).
2. Register and Enforce Your IP
While not all forms of IP are registrable, registration can provide more robust protection for your IP.
Copyright
In Australia, copyright is a free and automatic right granted to creative works, including literary or artistic works such as books, paintings, photographs, computer source code, or 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, copyright does not need to be formally registered to be enforced.
Trade Marks
A trade mark acts as a badge of origin that is applied to the goods and services a business provides so that consumers can identify who made or delivered the goods or services. 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.
Registering a trade mark provides additional rights to the owner of the trade mark, including the right to enforce the trade mark using the provisions of the Trade Marks Act. In addition, a trade mark must be distinctive to fill its function as a badge of origin.
Patents
A patent is a government-granted monopoly right to ‘exploit’ a particular invention. To obtain a patent, you must have an invention that is:
- new;
- not obvious;
- useful or capable of commercial application; and
- be otherwise patentable as a manner of manufacture.
It is essential to remember that ideas or discoveries are not patentable. After all, the invention must be a ‘manner of manufacture’. Whether or not an invention satisfies this requirement can be a tricky question, particularly for computer-based inventions.
Designs
A registered design protects the visual appearance of a product and not its functional aspects. The most common examples are clothing, jewellery, or furniture designs, such as the pattern of a dress, the configuration of a handbag, or the look of a chair. For a design to be registered and protectable, it must satisfy a newness requirement similar to that of patentable inventions.
Enforcement
Many individuals think that after they have registered their trade marks, patents or designs with IP Australia, there efforts end there. However, monitoring and policing your IP’s use for enforcement within the more significant marketplace is essential.
The IP registrant’s responsibility is to take the appropriate steps to stop infringement. If you notice a third party using your registered IP without permission, actions are available to prevent this infringement. Once you have identified potential infringing conduct, you may decide to speak with an intellectual property lawyer to help devise options for enforcement.
Continue reading this article below the form3. Register a Business Name While Registering Your Trade Mark
A common misconception is that registering a business name with the Australian Securities and Investments Commission (ASIC) is the same as registering a trade mark. However, simply registering your business name with ASIC does not ensure the protection of your trade mark. Instead, registering your business name as a trade mark can ensure that your rights are enforceable against infringing third parties.
4. Ensure Any IP Licences and Agreements Are In Place
As a creative, your designs or ideas may be licensed to other parties as part of an arrangement you have entered into. Firstly, it is essential to ensure that the details of the licence have been made in writing. Secondly, ensure that each party’s rights are defined in the relevant licence agreement.
If you intend to sell your IP rights in full to another party, it is essential to detail the scope of the transfer of rights in a separate agreement.
Key Takeaways
Protecting your IP as a creative is crucial as you grow your brand and reputation in the marketplace. If you have any further questions about what steps you can take to protect your brand, 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
A trade mark acts as a badge of origin that is applied to the goods and services a business provides so that consumers can identify who made or delivered the goods or services.
A patent is a government-granted monopoly right to ‘exploit’ a particular invention.
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