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Intellectual Property & Trademarks

by Angus Jones

The best idea in the world is useless if someone else copies it and they benefit from it.  Similarly, just because you register a business name in Australia does not mean it is protected. This guide will look at intellectual property & trademarks. What you need to know about protecting your ideas or brands and how you go about protecting them.

Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognise more than others. The most well-known types are copyrights, patents, trademarks, and trade secrets.
A patent is a form of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of years in exchange for publishing an enabling public disclosure of the invention.
A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks.
Wikipedia

WHY should I protect my ideas and brand?

Let us assume you have registered a business name and set up an internet domain.  For example, you own the business name GREAT PLUMBER and the internet domain greatplumber.com.au.  This does not preclude someone else writing great plumber on the side of their van.

If however, you owned the Australian trademark for great plumber you could take legal action to stop them from using the words great plumber.

If you invent something or have an idea that you do not want anyone to copy, you can apply for a patent. This will give you protection so you might generate earnings from your patent. A patent allows you to stop others from manufacturing, using, and/or selling your invention in Australia without your permission.

Other types of IP not covered in this guide includes copyright (for example, music), registered design (such as the shape of a product), circuit layout rights (for example, circuit board design), and plant breeders rights (such as a new plant variety)

WHAT do I need to know about patents and trademarks?

Patents

If you wish to discuss your idea with anyone before a patent is issued you should ensure they have signed a confidentiality agreement. If you have not kept your idea/invention a secret there is a chance a patent will not be issued.

There are two kinds of patents:

  • Standard Patent – provides up to 20 years of protection and control over an invention.  The invention must be new, have an innovative step and be made by or used in industry. Your claims will be examined and expect the process to take from 6 months to several years. Application fees start around $400.
  • Innovation Patent – The Australian Government has decided to stop offering innovation patents from 25 August 2021.  It is a patent that protects an invention for up to eight years. It is not as stringent in its requirements as a standard patent and can get approval much more quickly.
Trademarks

A trademark can be a unique symbol, word(s), sound, number, image, or scent used to represent a business or its products. Once you register a trademark in Australia it gives you the sole right to use, license or sell it to others in Australia. Expect the trademark process to take at least 7 months and cost more than $200.

It is possible to register a trademark in different industries by different people, such as Dove chocolate and Dove soap.

If you do not use your trademark it can be removed on the grounds you are not using it.

HOW do I apply for a patent or trademark?

To apply for a patent or trademark you must be authorised to do so by the owner/inventor and be planning to use it.

Your first step should be to check if anyone has already applied:

Trademark search https://search.ipaustralia.gov.au/trademarks/search/quick

Patents search https://www.ipaustralia.gov.au/patents/understanding-patents/searching-patents

Patent Applications

Although you can apply yourself we strongly recommend you use the services of an attorney to increase your chance of success. https://www.ipaustralia.gov.au/patents/engaging-an-attorney-toolkit

A provisional application can also be filed which helps prove you were the first to come up with an idea prior to a patent being approved.

You can apply for a patent through a patent attorney, on the IP Australia website and in writing.  More details can be found here: https://www.ipaustralia.gov.au/sites/g/files/net856/f/patent_application_guide.pdf

Trade Mark Applications

Assuming you have checked your trademark is available you can visit IP Australia and do an online application where you will have two choices for your application:

  • TM Headstart – for a higher fee you can get assistance with your application and the ability to make changes before your final review
  • Standard – application for formal review

The Australian Government provides a special portal to further help you with your understanding and application here  http://trademarks.business.gov.au/assist/welcome

HINTS

Although the idea of having IP protection is good you may end up in a situation where the time effort and money involved outweighs the commercial benefit.

This guide has discussed registering IP in Australia. If you wish to have those same protections overseas you would need to consider IP protection in each country that you wanted that protection.

Visit IP Australia’s website to use the IP Toolkit https://www.ipaustralia.gov.au/tools-resources/ip-toolkit

If you believe your IP has been infringed you can either look at alternative dispute resolution or take the matter to court.  More information can be found at IP Australia https://www.ipaustralia.gov.au/ip-infringement/enforcing-your-ip

SUMMARY – Intellectual property and trademarks in Australia

If you want to protect the Intellectual property and trademarks of your brand or your ideas you will need to register a trademark or patent. Registering a trademark is a much simpler process and can be done yourself. But it is strongly recommended you get professional assistance if you wish to register a patent. Be prepared to wait from 6 months to several years to get the protection approved. Note that will only be for Australia and not other countries.

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