Types of IP explained

The various types of intellectual property (IP) exist to encourage your business to innovate. IP rights can be an effective way to assist in successful innovation of your idea. An innovative idea should be treated as a secret until you have formally registered or secured ownership of the innovation.

The main types of IP are:

Patents

The best way to protect something you develop is to apply for a patent. A patent is legally enforceable and gives you the exclusive right to commercially exploit your invention for the life of the patent. The only creations that can't be patented are artistic creations, mathematical models, plans, schemes or mental processes.

When you apply for a patent through IP Australia, the application is assessed against the necessary legal requirements.

A standard patent provides long term protection and control over an invention for up to 20 years from the day you lodge your application. Depending on the circumstances and the type of protection you are applying for, examination can take from six months to several years.

An innovation patent is useful for small-to-medium-sized businesses seeking a first-to-market advantage over competitors. They protect innovative ideas or creations, but may not necessarily be new inventions. This patent protects the idea for up to eight years and is generally granted within one month. Innovation patents don't allow you to legally stop others from copying your innovation unless you have your innovation patent examined.

Trade marks

A trade mark is a way of distinguishing the goods or services of your business from those of other businesses. It gives you exclusive rights to commercially use, license or sell the trade mark. This means that no one else in Australia can commercially use your trade mark within the class of goods and services it's registered under.

Any feature (or combination of features) that distinguishes your goods or services from others can be registered as a trade mark. This includes: a letter, number, word, phrase, sound, smell, shape, logo, picture or aspect of packaging.

If your business name is painted on the side of a truck, for example, a trade mark is a legally enforceable way to protect it.

How to register a trade mark

  • First, search IP Australia's Australian Trade Marks Search System to make sure the trade mark you want to use is available. This search will provide you with both currently registered trade marks and trade marks which are being applied for.
  • You can then apply for a standard trade mark through the IP Australia website.
  • Alternatively you can apply using IP Australia’s TM Headstart service, which provides you with a pre-assessment of your application within five working days before you publicly file.
  • Generally, your application will be assessed three to four months after you file the application. If your trade mark is accepted, it will be advertised as an accepted application in the Australian Official Journal of Trade Marks. If anyone wants to challenge your application, they can file an opposition.
  • If no oppositions are filed against you, or if they are not successful, your trade mark will be registered when you pay the registration fee. You must pay within six months from the date your accepted application is first advertised.
  • The cost of applying for a trade mark will vary depending on the protection you are seeking. Generally, the minimum cost to apply for a trade mark is around $250 for each class. For a TM Headstart you will pay $200 per class for the pre-assessment and a second fee of $130 per class to progress it to a standard application. Most small businesses often only need one or two classes.
  • Once registered, the trade mark is protected in all Australian states and territories for an initial period of 10 years. For international protection, you need to register your trade mark in each country you want protection in.

The Institute of Patent and Trade Mark Attorneys of Australia is a representative body for Australian patent and trademark attorneys. This site provides the latest news and resource information about patent and trademark law in Australia.

Copyright

The livelihood of your business can rest on the ability to stop others from copying your creations.

Copyright is one of two forms of intellectual property that don’t require formal registration. The other is circuit layout rights.

Copyright protects the expression of ideas and information in certain forms including writing, music, visual images, broadcasts, sound recording, moving images and computer programs. Copyright protection is provided under the Copyright Act 1968. It is designed to prevent the unauthorised use by others of a work that is in its original form.

Though copyright protection is free and automatic, consider placing a copyright notice in a prominent place on your work. Although it's not necessary in Australia, it can act as a reminder to others. It can also be required to establish copyright in some countries.

Circuit layout rights

For businesses creating unique and highly complex integrated circuits or computer chips, a lot of value can be created from selling layouts to others. It's therefore important to understand how to protect your creation from being copied.

Circuit layout rights automatically protect original layout designs for integrated circuits and computer chips under the Circuit Layouts Act 1989. Rights do not have to be registered or granted.

The owner of an original circuit layout has exclusive right to:

  • copy the layout in a material form
  • make integrated circuits from the layout, and
  • exploit it commercially in Australia.

Registered designs

The appearance of a product you make can be one of your greatest commercial assets in setting yourself apart from the competition. Registering the design of your product can prevent others from using the design without your permission.

There are a number of steps to take before you register your design, from deciding if you have a design to preparing images and drawings.

You can register the design of your product if it has an industrial or commercial use, and has a visual appearance that is both new and distinctive. This includes the shape, configuration, pattern or ornamentation that creates a unique appearance when applied to your product. A registered design doesn't protect how your product feels, what it's made of or how it works.

For instance, toy building blocks, Speedos® and folding chairs all have registered designs due to their unique appearance.

Under the Designs Act 2003, registration will protect your design for up to 10 years.

Plant breeder’s rights

For agricultural businesses, finding a new plant variety can produce significant competitive advantages. Plant varieties that are drought resistant for example, can protect crops in harsh conditions and improve yields. Protecting your unique plant species from being copied is much like the need for protecting a new invention.

Plant Breeder's Rights (PBR) are exclusive commercial rights for the use of new and unique plant varieties. Protection offers control over the production, sale and distribution of the new variety, allows you to receive royalties from the sale of plants and to sell your rights.

The breeder of a new variety of plant, and those who have acquired ownership rights from the original breeder, can apply under the Plant Breeder's Rights Act 1994. Protection can last up to 25 years depending on the type of plant being registered. You can apply for the rights using application forms available from the PBR Office.


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