Retailers require unique methods to attract customers. Intellectual property (IP) serves as a legal right to establish a distinct brand. These IP rights are intangible. They are invisible to the naked eye and cannot be physically touched. Once granted, IP rights are protected across all states and territories. This article explores the benefits of utilising copyright and trade marks for your retail business.
Types of IP Rights
Several types of IP are commonly used in Australia, such as:
- copyright, which protects art, writing, music, film, and computer programs;
- patents, which protect inventions and new processes;
- trade marks that protect logos, words, and other branding;
- registered designs, which cover the unique visual appearance of a product to prevent unauthorised use of its shape or configuration; and
- plant breeder’s rights, which protect the commercial rights of new plant varieties.
Importantly, correct IP protection gives you exclusive rights to your brand. This means that manufacturing, selling or distributing counterfeit products is illegal. Similarly, other organisations or businesses cannot use similar signs or branding to your own. Exclusive rights also allow you to buy, sell or license your rights to others.
Identifying and Protecting Your Brand
Your brand distinguishes your retail business. It fosters trust with customers who recognise and understand your identity. Retailers commonly use copyright and trade marks to safeguard their brand. Intellectual property (IP) helps protect assets like domain names, website content, and logos.
Continue reading this article below the formCopyright
Copyright is a type of property that is founded on an individual’s creative effort and work. In Australia, the Copyright Act 1968 governs copyright law. Unlike some other countries, there is no formal registration process for copyright in Australia. Instead, copyright is automatically granted to the creator or author when their work is created or produced.
In general, copyright protection lasts for 70 years after the death of the author. However, there are certain exceptions to copyright law, allowing for its use in socially beneficial activities such as research.
Trade Marks
A trademark serves as a clear identifier of the origin of goods or services. It can take various forms, such as:
- words;
- phrases;
- symbols;
- sounds;
- movements; and
- scents.
However, not all words, phrases, or images can be registered as trade marks except under exceptional circumstances. Common surnames and geographical names, for example, typically cannot be registered.
In Australia, those interested in registering a trademark must adhere to the procedures outlined in the Trade Marks Act 1995. Registration generally involves:
- searching to check if a similar trade mark is already registered;
- applying with the Australian Government agency, IP Australia, to show your trade mark is in some way novel; and
- having the application examined and subject to public inspection.
The entire registration process typically takes a minimum of seven months. Once registered, a trademark remains valid for up to ten years before requiring renewal.
Upon registration, the holder gains the legal right to enforce the trademark, preventing others from using the same identifier. Not having a trademark leaves a brand vulnerable to potential re-branding if another entity adopts a similar image. This can be both time-consuming and costly.
IP Protection Overseas
Registering IP in Australia does not automatically protect your fashion or beauty brand overseas. If you operate all or parts of your business outside Australia, consider registering IP with the country you are doing business with. The steps to file for IP protection overseas vary based on the country but can include:
- international agreements such as the Paris Convention that allow the use of your Australian filing date in overseas applications;
- country databases to ensure there is no similar IP; and
- the application process of your target country.
Some well-known global businesses have registered their trade marks overseas. According to the Australian Intellectual Property Report 2023, New Zealand, the United States, China, the UK, and the European Union were the most popular destinations for Australian applicants seeking overseas trade mark protection.
This guide explains the essentials of trade marks and the steps required to register a trade mark.
Enforcement of IP rights
In most cases, the civil court deals with the infringement of IP rights. It is not a criminal matter. Accordingly, one would be required to sue for copyright or trade mark infringement. If successful, a court can award compensation and an order to stop the infringement.
However, selling counterfeit goods is a crime and carries a penalty of up to five years of imprisonment, a fine, or both. The Australian Federal Police and state and territory police deal with breaches of trade mark law.
Key Takeaways
To safeguard your retail business, you will need to register your intellectual property either with the Australian Government or with an overseas organisation if you are operating internationally. This concept must be novel to qualify as intellectual property. You must keep in mind in mind that copyrights and trademarks, once established, have expiration dates and need to be renewed periodically.
If you would like assistance with registering IP for your retail business, our experienced intellectual property lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1800 485 742 or visit our membership page.
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