Protecting Ideas and Products
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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There are a number of laws that apply to
intellectual property:
-
Copyright Act
-
Trademarks Act
-
Designs Act
-
Patents Act
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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.
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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:
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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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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:
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