You may have a great idea, one that you’re certain is going to make you rich. But before you invest in your idea, you need to protect it. Venturing into the world of intellectual property protection for the first time can be intimidating, so this summary is designed to help you find your feet in the world of intangible assets.
What is intellectual property?
The exact definition of ‘intellectual property’ can be slippery, but generally, the phrase ‘intellectual property’ means creations of the mind. This includes things like ideas, music, artwork, designs, and other intangible items used in commerce such as names, phrases and images.
Generally, intellectual property can be divided into two categories: industrial property and creative works. Industrial property contains things like inventions, names and logos; while creative works include things like music, artworks and literary works.
Who issues intellectual property protection?
In Australia, intellectual property is administered by IP Australia. Their role is to administer the various types of intellectual property rights granted under legislation, which includes granting intellectual property rights, maintaining registers of protected intellectual property, and providing a legal framework for protecting and trading intellectual assets.
Globally, the World Intellectual Property Organization (WIPO) has been created by the United Nations to promote the development and protection of intellectual property throughout the world.
What are the different types of protection?
There are five forms of intellectual property generally recognised in Australia:
- Plant Breeder’s Rights,
If you are looking to protect an idea or product, you must first identify which of these areas is most applicable. We’re aiming to make this process easier by providing a brief summary of each.
Copyright protects a variety of musical, artistic, literary and dramatic works from being used by someone else without your permission. It also extends to creating ‘moral interests’, which mean that you have the right to be credited for your work and the right to protect it from being destroyed or changed.
Copyright exists automatically – you don’t need to make a formal application to any governmental body to be protected by it. It is generally valid from the time the idea is created until seventy years after the authors’ death.
Copyright is governed by the Copyright Act 1968 (Cth).
Patents protect inventions, that is, any device, substance, method or process provided it is new, inventive and useful.
To protect your idea with a Patent, you must make a formal application through IP Australia. Applying for a Patent is a long, complex process, so you should seek the advice of a specialist patent attorney. Once an application is approved, a standard Patent is valid for up to twenty years.
Patents are governed by the Patents Act 1990 (Cth).
A Trade Mark protects a brand, and is used to distinguish the goods and services of one trader from those of another. A trade mark can be any letter, number, word, phrase, sound, smell, shape, logo or picture.
Trade Marks are granted by applying to IP Australia. Trade Marks are protected for ten years initially with an option to renew.
Trade Marks are governed by the Trade Marks Act 1995 (Cth).
A Design refers to new and distinctive features that give a product a unique appearance, and Designs are used to protect designs intended to industrial or commercial use.
Applications for Design protection can be made through IP Australia. Once granted, Design rights are valid for five years with an option to renew once to a maximum of ten years.
Designs are governed by the Designs Act 2003 (Cth).
Plant Breeder’s Rights
Plant Breeder’s Rights give you protection in relation to new varieties of plants that are distinguishable, uniform and stable so that you have the exclusive right to sell and profit from it.
IP Australia administer Plant Breeder’s Rights. Once rights are granted, they are valid for up to twenty years before the product enters the public domain.
Plant Breeder’s Rights are governed by the Plant Breeder’s Rights Act 1994 (Cth).
How do I protect my idea?
A lot of the information in this page is sourced from IP Australia, and it does not amount to legal advice. If you would like more information about the right kind of protection for your idea or about commencing the application, contact us to discuss further at any time.
Thanks to our intern Kirrily Schwarz for this helpful article.