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Intellectual property (IP) is an umbrella term used to identify intangible rights including copyright, trade marks and patents. Certain types of IP rights will apply to your work or item automatically, whereas other types of IP rights must be registered before you can rely on them. This article will explain three types of IP rights: copyright, trade marks, and patents. We will also clarify which IP rights require registration, and which ones do not.

What is Copyright?

Copyright is a set of economic rights protecting various subject matters. Economic rights include the right of reproduction, right of publication, and the right to communicate work to the public. In Australia, copyright subsists in two distinct subject matters: works (literary, dramatic, musical and artistic works), and subject-matter other than works (sound recordings, cinematograph films, television broadcasts and sound broadcasts, and published edition of works). The duration of copyright protection will vary depending on the subject matter.

The Australian Copyright Act also contains a set of moral rights, separate from economic rights. Moral rights are:

  • Right of attribution: the right to be attributed as the author of a work;
  • Right against false attribution: the right not to have someone else attributed as the author of your work; and
  • Right of integrity: the right not to have work subjected to derogatory treatment.

Both copyright and moral right is automatic and does not require registration.

What is a Trade Mark?

A trade mark protects a sign used to identify your goods or services to consumers. A trade mark can be registered if it is distinctive, does not conflict with a trade mark with earlier rights, and is not prohibited. It can be a name, image, logo, slogan, colour, smell, sound, shape (or a combination of these things) so long as it is capable of being distinctive in this manner. A registered trade mark is only protected in the country of registration.

A brand or badge of origin can also be protected as a trade mark without registration. However, it may be more difficult to establish and/or assert your rights in an infringement action.

What is a Patent?

A patent is a set of exclusive rights granted over any device, substance, method or process that is new, inventive and useful, for a limited time after a successful application process. Similar to trade marks, it is a registrable right granted by the country of registration. An applicant for a patent has to disclose the substance of the invention, making the information available to the public. Consequently, some inventors make the business decision not to disclose their patents, instead opting to keep their invention confidential as a trade secret.

When is registration necessary?

The following table sets out the common types of IP rights, separated into rights which require registration in Australia, and rights which do not.

Registration Required Registration NOT Required
  • Patents.
  • Trade marks.
  • Designs.
  • Plant breeder’s rights.
  • Copyright (both economic and moral rights).
  • Circuit layout.
  • Confidential Information.

Conclusion

Intellectual property can be a valuable commodity and should be protected. However this is not always an easy task. It is a good idea to have any agreements governing your rights, including intellectual property rights, be in written form. Our team of lawyers have extensive experience in this area and would be happy to assist with protecting and registering your intellectual property. LegalVision has a team of great IP lawyers who can assist you. Please call our office on 1300 544 755 and our Client Care team will happily provide you with an obligation-free consultation and a fixed-fee quote.

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