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 protect 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 it 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 recognisable 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.
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 from 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.
You can apply for a patent if you invent something or have an idea you do not want anyone to copy, and this will give you protection so you might generate earnings from your patent. A patent allows you to stop others from manufacturing, to use, 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?
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 at 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, and it is not as stringent in its requirements as a standard patent and can get approval much more quickly.
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 seven 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
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 before a patent is 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 make 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.
Although the idea of having IP protection is good, you may end up in a situation where the time, effort and money involved outweigh the commercial benefit.
This guide has discussed registering IP in Austral a. If you wish to have those same protections overseas, you would need to consider IP protection in each country you want.
Visit IP Australia’s website to use the IP Toolkit https://www.ipaustralia.gov.au/tools-resources/ip-toolkit.
You can look at alternative dispute resolution or take the matter to court if you believe your IP has been infringed. 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 your brand’s intellectual property and trademarks or ideas, you will need to register a trademark or pate t. 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 six months to several years to get the protection approval. Note that it will only be for Australia and not other countries.