Identifying The Intellectual Property of Your Business & Products

To protect your business name and other intellectual property of your products or services you must first identify what the intellectual property of your business is. Your business name is often important to protect, or perhaps the design shape of your product or it may even be how your product works. Identifying the intellectual property of your product or business is vital as there are no rights to the idea of your business or product, only its expression.

 

The potential intellectual property may be either trade marks, copyright patents, designs, and confidential information, and each will be discussed below.

Trademarks

Your business name, logo or product may be branded with a name, logo, or even shape. This can be protected by trademark whereby you will have exclusive rights to use trademark for the registered goods or similar goods. The term is perpetual with 10 year renewals.

A trade mark is a powerful legal protection. And a valuable one. While a trademark will not prevent competitors otherwise copying the actual product, it will protect the reputation and goodwill garnered in the name or brand of your business or product, and being a perpetual right, this will be especially beneficial once the patent or design monopoly period expires.

It is also particularly powerful when other forms of intellectual property protection are not available.

Copyright

The Copyright Act 1968 (Cth) (‘Copyright Act’) protects ‘artistic works’ that are ‘original’, which includes two-dimensional works such as drawings and blueprints.  Copyright does not protect the function or innerworkings of a product, only its appearance and shape.  The term of protection will be for the life of the author plus 70 years.

However, the Copyright Act contains various provisions which limit copyright protection for items that could be protected by under design legislation and have been industrially applied.  For most products, industrial application would be taken to occur when more than 50 items were made or sold.

Copyright almost never will protect your business name or product name.

Designs

A design registration in Australia will protect the overall appearance of the product resulting from one or more visual features of the product being new and distinctive. The visual features include the shape, configuration, pattern and ornamentation of the product. A design does not include the feel of the product, its use, what it is made from or how it operates. The term of protection 5 years renewable for a further 5 ½ years.

Patents

Patents generally protect the way in which something works. That is, its function and how it achieves it. A valid patent will prevent third parties making another product that takes the essential features of the invention, notwithstanding the competing device being visually different or alternatively branded. The patent term is 20 years.

An invention will be patentable if it is new and inventive when compared with what is already known (the prior art).

A final note: Australia also has the innovation patents regime for ‘innovative’ rather than ‘inventive’ products. Although relatively quick and inexpensive, the term is only 8 years and they cannot be the subject of international protection.

 

Need some advice on this?

If you need some more advice in your particular case, we offer a free initial consultation.

Can I patent or trademark my business method?

Under Australian patent law, there is no statutory position on whether a business method ispatentable subject matter, and so it is legal precedent that provides guidance. The watershed NRDC (1) case opened the door to what can be considered patentable subject matter...

Can I Trademark My Instagram or Facebook Account?

Is it possible to trademark an Instagram or Facebook account? The short answer is, yes, you can. Like any other name or logo, Instagram and Facebook accounts accrue good will and reputation that businesses wish to protect. And they can be legally protected by a...

Protect your trade mark in the United States

There is no single worldwide trade mark registration.  You will need to apply to each country in which you would like to have a registered trade mark.  Even for large companies, this task can prove too cumbersome and expensive.  Therefore, the pragmatic route is to...

Five Reasons Why You Need A Trademark Attorney

Some people ask before applying for a trademark whether they need a trademark attorney to assist in protecting their brand. For the relatively small costs involved, we certainly recommend you use a legal expert to handle your trademark registration.And here’s our 5...

Why Was My Trademark Rejected?

What Causes A Trademark To Be Rejected? A registered trademark will give you a legal monopoly over the word or logo that you have registered.  This is a powerful right, and the government will not grant it without first examining it on several grounds.   Let’s first...