The information provided on this page is general in nature and intended only to provide an introduction to the topic. This information is not to be taken as legal advice. You should not act on any information provided here, without obtaining legal advice first.
What is Intellectual Property? – a quick outline
Intellectual Property (IP) refers to creative and intellectual efforts protected by legislation and the general common law. IP is about more than inventions and logos. IP rights include rights relating to things such as designs, domain names, trade secrets and even recipes. Some IP rights are automatic, whilst others are granted only after application and examination against the relevant criteria by government agencies.
IP rights can arise in any original creative work, such as a piece of music, an invention, a piece of software or a brand, that has been developed to a stage where it can be captured in a permanent form. IP rights can be owned in the same way as physical property. The owner of IP has control over it and would expect to be rewarded for its development and use. Anyone who creates a new innovative idea, has the right to benefit from it. That right can be bought, sold, hired or licensed like any other property.
Some common forms of IP are outlined below.
Registration of a trading name
Trading names may be registered as a business name with the Australian Securities and Investment Commission (ASIC), where the name (or something very similar) has not been registered by someone else. It is unlawful to trade under a business name unless that name is registered. A company may trade under its own name (registered with ASIC).
It is important to understand that registering your trading name with ASIC does not prevent someone from using your trading name without your consent. That is why it is important to register your logo and business name as a trade mark where you want others to be prevented from using them.
Trade marks
While registration of a brand name or other trade mark under the Trade Marks Act is not compulsory, it gives the registered owner exclusive rights to use the trade mark. The registered owner may authorise others to use the trade mark, in relation to the goods or services in respect of which the trade mark is registered. If a trade mark is not registered, it can be an expensive and time consuming exercise to take action under common law if your mark is infringed.
Patents
A patent is a right that is granted to protect the right to replicate any device, substance, method or process that is new, inventive, and useful. Once registered, it is legally enforceable and gives the owner exclusive rights to commercially exploit the invention for the life of the patent. You should seek advice on whether innovative products you develop, should registered as patents. The right to patent an innovation can easily be lost, so take advice as early as possible.
Designs
A registerable “design” is the unique visual appearance of a product, such as the shape, configuration, pattern and ornamentation. As with patents, when a design is registered, the owner has the exclusive commercial rights to use, licence, sell or protect it. These rights only exist when a design is registered. A design right can only be registered if it is new and distinctive, that is, not identical or similar to another design previously or currently used in Australia or the world.
Plant breeders rights
Plant Breeder’s Rights (PBR’s) are used to protect new varieties of plants that are distinguishable, uniform and stable. PBR’s are legally enforceable and provide exclusive rights to commercially use, sell, direct the production, sale and distribution of the plant variety, and receive royalties from the sale of those plants. Once registered, the plant breeder is able to utilise the Plant Breeder’s Rights Interactive Variety Description System (IVDS) to register various descriptions of their plants.
Copyright
Copyright protection is free and applies automatically when anything that can be reproduced in a 2 or 3 dimensional form, words or other digits is created. There is no registration system for copyright in Australia and it is governed by the Copyright Act. Copyright does not protect ideas, information, styles or techniques but does protect:
- literary works such as journal articles, novels, screenplays, poems, song lyrics and reports;
- computer programs (a sub-category of ‘literary works’);
- compilations such as anthologies, being the selection and arrangement of material may be protected separately from the individual items contained in the compilation;
- artistic works such as paintings, drawings, cartoons, sculpture, craft work, architectural plans, buildings, photographs, maps and plans;
- dramatic works such as choreography, screenplays, plays and mime pieces;
- musical works: the music itself, in addition to lyrics or recordings;
- cinematograph films: the visual images and sounds in a film or video; sound recordings and broadcasts on TV and radio; and
- published editions: publishers have copyright in their typographical arrangements, separate from the copyright in works reproduced).