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Protecting Ideas and Products

 

 

Why it’s Important

If you go to all the effort of developing a product, you want to be sure that no one comes along to steal your work. You may be surprised to know that your ideas can be legally protected – lawyers call this the protection of “intellectual property”. The various ways that intellectual property can be protected are through the laws of:

  • Copyright
  • Design
  • Trademark
  • Patents

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What Laws Apply

There are a number of laws that apply to intellectual property:

  • Copyright Act
  • Trademarks Act
  • Designs Act
  • Patents Act

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Copyright

This is pretty much what it says: it stops someone copying the creative work of a person unless they have been given permission to do this. This can be achieved by paying a fee/royalty, and/or acknowledging the creator, and/or that the use is authorised.

To copyright your product, you do not have to take formal steps. It is automatic as soon as the product is created, for example, when you write a letter or make a sketch. But remember copyright does not protect ideas.

Copyright is automatic – you don’t need to register it, although there are services where you can do this. The advantage is that you then have formal proof of the creation of the product.

In general copyright protects works such as:

  • Literary works;
  • Film, music and sound recordings;
  • Broadcasts;
  • Other artistic works, etc.

Copyright of Designs: for designs to be protected for up to 10 years under the Designs Act, it must be registered with IP Australia. Individuals wishing to manufacture products or make multiple copies of the artistic work must seek legal advice as there are legal ramifications to this action under the Design Act.

Copyright is property that can be assigned or licenced to other people, such as in contracts or wills.

 

Who Owns Copyright?

Generally speaking, the creator, producer, maker, publisher or broadcaster would own the copyright to the work. Intellectual property created by employees in the course of employment is owned by the employer. Copyright is owned by the Government in cases where individuals are working under the direction or control of the Government, including freelancers and contractors.

 

For commissioned works, rules vary depending on the date of creation. Photographs taken for private purposes on or after 30 July 1998 are owned by the client. Copyright ownership belongs to the photographer if the photographs were taken for commercial purposes. In all other cases, copyright ownership of commissioned works generally belongs to the creator or maker of the material.

 

Copyright Infringement

When a person or organisation uses copyright material without the owner’s permission this is regarded as copyright infringement. This can occur when a substantial element of the original work or material is used, or when a new work utilizes an important or distinctive part of the original work. Copyright infringement may also occur when pirated material is involved, when importing copyright material for commercial purposes, and when materials are used in inappropriate ways that constitute infringement. Fair dealing, personal use and educational or government use is not considered infringement.

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Designs

A design is that part of a product which distinguishes it from similar products. The design is not the product itself, but more its appearance. For example, the design of a Rolls Royce if different to the design of a Mercedes.

Designs can only be protected if they are registered under the Designs Act. To be registerable, the design must be:

  • New; and
  • Original.

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Trademark

This protects a name or the identification of a product. It can be important if someone tries to hijack the name – if you have registered the trademark you can take action to stop them.

You don’t have to register a trademark. If it has been used for some time it may be recognised by the common law. But in that case you would have to prove the point in court rather than relying on your registered trademark.

Another benefit of registration is that it allows the owner to use the mark throughout Australia, and you can assign, transfer or sell the rights in the trademark.

 

What Trademarks can be Registered?

Not all trademarks can be registered. Under the Trademarks Act, a mark must be either:

  • An invented word e.g. “Lawforyou/Law4U”;
  • A group of words that are innovative;
  • A distinctive mark or logo; or
  • A signature.

Remember, just having a business or company name is different to a trademark. It may be the basis for proving a common law right to a name, but for certainty you should register a name.

 

How to Register a Trademark

IP Australia registers trademarks and patents and provides information on the protection of intellectual property. You should:

  • Check the Register of Trademarks and the applications pending to see if there are any similar marks in the same classification of products and services; and
  • Apply for registration if there is no conflict. If there is a conflict and you want to keep the trademark, get legal advice.

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Patents

This is the way to protect something you have invented. You can register it with IP Australia.

A patent allows the inventor to have the exclusive right to make and sell the invention.

To register a patent, an invention must be:

  • New; and
  • Inventive.

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Our dedicated team can assist you with all matters relating to developing or protecting your Intellectual Property. Complete and submit the Express Enquiry form on the top right hand side of this page and we will contact you to discuss your enquiry or call us on 1300 QUINNS (1300 784 667) or on +61 2 9223 9166 to arrange an appointment.