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 trademarks, copyright patents, designs, or confidential information, and each will be discussed below.
Your business name, logo, or product may be branded with a name, logo, or even shape. This can be protected by a trademark whereby you will have exclusive rights to use the trademark for the registered goods or similar goods. The term is perpetual with 10-year renewals.
A trademark 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.
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 inner workings 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.
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 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.
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