Reading time: 6 minutes

A common issue faced by startup businesses is knowing when to invest money in intellectual property (IP) protection. Each type of IP has its own benefits, so it is important to know the various types and how they may apply to your business. For the long-term success of your business, you should take steps to protect your IP early on to prevent others from using your valuable IP assets.

This article will outline some of the key issues to consider when exploring IP protection. It will also discuss some preliminary steps you can take to help determine whether your IP can be protected and therefore reduce the risk of over-investing too soon.

Before Going to Market

Ideally, you should consider protecting your IP before launching your business. This is because once your product or service is in the public domain, the risk of others using your IP rises. Generally, it is much easier to enforce your IP against infringers if it is registered and protected. The last thing you want is someone else stealing or copying your IP after having invested time and money into your business launch. Protecting your IP early on can also help you with:

  • deterring competitors from copying your IP;
  • establishing a competitive advantage; and
  • attracting investment for your business.

Despite the obvious benefits of protecting your IP before going to market, it is not practical for many startup businesses due to the costs involved with IP registration. If money and resources are limited, then it may make sense to ‘test’ your business model before investing in your IP. If you decide to launch your business before registering your IP, there are some key legal issues you should consider as explained below.

After Going to Market

It is possible to register your IP after launching your business, or at any time during your business lifecycle. However, registering your IP at a later stage can make it more difficult and costly to protect and enforce your IP against infringers in the long run.

In addition, some forms of IP are more time sensitive than others. The timing considerations associated with the three most common types of IP registered in Australia are set out below.

Patents

A patent protects a new invention. Generally, once you have publicly disclosed your invention: 

  • it may no longer be eligible for patent protection; or 
  • you may need to rely on grace periods.

Therefore, if you have created a product or service that is new and inventive, you must keep this confidential until you have applied for patent protection.

If you need to discuss your invention with others, such as a manufacturer, use a non-disclosure agreement to prevent them from revealing your invention and other confidential information without your permission.

You may also consider filing a provisional patent application before launching your invention. This is often the first step for many businesses. Once you file a provisional patent application, you will be given a priority date. This is the date from which your application is given preference over subsequent inventions.

A provisional patent application is only valid for 12 months. However, it can act as a placeholder for your full patent application and allow you to disclose and use your invention in the meantime.

Designs

A design protects the visual appearance of a product that is distinctive and unique. Similar to patents, you must register and protect a design before you go to market and start advertising your product. 

This is because once your design is disclosed and in the public domain, it is no longer considered distinctive and therefore cannot be registered. There are no grace periods for designs.

Trade Marks

A trade mark protects elements of your brand, such as your business name and logo. You can apply for a trade mark at any time and there is no time limit. However, it is recommended to apply early on to secure your priority date and reduce the risk of someone applying for a similar trade mark before you.

When Should I Protect My IP?

There is no right or wrong answer as to when you should seek protection for your IP. The benefits and risks associated with obtaining IP protection before and after going to market will vary for each business and depend on various factors.

In addition, some forms of IP will be more valuable to your business than others. While most businesses will own copyright and have trade mark protection to some degree, not every business will need a patent. Therefore, it is important to understand the benefits of each different type of IP and prioritise them according to which protections will maximise the value and success of your business. 

What Can I Protect?

Each form of IP has its own eligibility requirements. Before investing money in registering your IP, you should understand whether you are likely to qualify for registration by seeking advice from a legal professional.

You can also perform your own preliminary searches and investigation to help assess the registrability of your IP and any potential risks. This is especially important during the ideation stage of your business. 

For example, you may find a registered trade mark that is identical to yours right away and avoid the time and cost involved with lodging a formal application.

The table below outlines some of the free databases you can use to search for any existing IP registrations similar to yours.

Official search systems Other search systems
Patent

Australian patent database 

Overseas patent search

  • Google search
Design

Australian design search 

Global design database

Trade Mark

Australian trade mark search

Global brand database

  • Google search
  • Australian Securities and Investment Commission for company names
  • Australian Business Register for business names
  • Domain name search
  • Social media search (e.g. Facebook and Instagram)

Doing your own investigation can help reveal any red flags before registering your IP. However, it is best to seek advice from a legal professional who can assist with performing detailed searches and provide a formal assessment.

Key Takeaways

It can be difficult to decide when to invest in IP protection and what you should protect. There are obvious benefits to registering your IP before launching your business. However, this is not practical for some startup businesses due to limited funds and resources. Your business will need to make a judgement call about what IP to protect and when. However, as a rule of thumb, the earlier you register and protect your IP the better. This will give you a significant advantage over your competitors, especially when it comes to preventing others from misusing your IP. If you need assistance with your IP strategy, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Webinars

Redundancies and Restructuring: Understanding Your Employer Obligations

Thursday 7 July | 11:00 - 11:45am

Online
If you plan on making a role redundant, it is crucial that you understand your employer obligations. Our free webinar will explain.
Register Now

How to Sponsor Foreign Workers For Your Tech Business

Wednesday 13 July | 11:00 - 11:45am

Online
Need web3 talent for your tech business? Consider sponsoring workers from overseas. Join our free webinar to learn more.
Register Now

Advertising 101: Social Media, Influencers and the Law

Thursday 21 July | 11:00 - 11:45am

Online
Learn how to promote your business on social media without breaking the law. Register for our free webinar today.
Register Now

Structuring for Certainty in Uncertain Times

Tuesday 26 July | 12:00 - 12:45pm

Online
Learn how to structure to weather storm and ensure you can take advantage of the “green shoots” opportunities arising on the other side of a recession.
Register Now

Playing for the Prize: How to Run Trade Promotions

Thursday 28 July | 11:00 - 11:45am

Online
Running a promotion with a prize? Your business has specific trade promotion obligations. Join our free webinar to learn more.
Register Now

Web3 Essentials: Understanding SAFT Agreements

Tuesday 2 August | 11:00 - 11:45am

Online
Learn how SAFT Agreements can help your Web3 business when raising capital. Register today for our free webinar.
Register Now

Understanding Your Annual Franchise Update Obligations

Wednesday 3 August | 11:00 - 11:45am

Online
Franchisors must meet annual reporting obligations each October. Understand your legal requirements by registering for our free webinar today.
Register Now

Legal Essentials for Product Manufacturers

Thursday 11 August | 11:00 - 11:45am

Online
As a product manufacturer, do you know your legal obligations if there is a product recall? Join our free webinar to learn more.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Graci_Chen
Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2022 Law Firm of the Year Winner 2022 Law Firm of the Year - Australasian Law Awards