Act Before You Think: Protecting IP In Aus

Intellectual Property (or IP) can be complicated, but it is essential for Australian business owners to understand, as getting it wrong could be detrimental.

Put simply, Intellectual Property is an intangible asset that is protected under legislation and common law.

It is a cornerstone to many businesses and therefore needs protection, especially for start-ups and small family businesses more at risk of its theft.

Australian IP laws are in place to help encourage innovation and protect businesses and their respective competitive advantages. Australia is also a signatory to international agreements that protect IP in other countries; and even has a dedicated agency for administering IP rights and legislation called ‘IP Australia’.

Strap yourself in as we breakdown the high-level need-to-knows about Intellectual Property in Australia (and internationally, kinda).

There most common types of IP rights include:
  • Patents: protect inventions and new processes;
  • Trademarks: protect logos, words and other branding;
  • Copyright: protect art, writing, music, film, and computer programs;
  • Registered Designs: protects the visual design of a product;
  • Circuit Layout Rights: protect layout designs or plans of integrated circuits used in computer-generated designs;
  • Plant Breeders Rights: protect the commercial rights of new plant varieties; and
  • Trade Secrets: this is the protection of confidential information including secret formulas, processes, and methods used in production.

Patent Protection:

A patent provides legal protection of any device, substance, method, or process, giving you; your business the right to stop any anyone else from using and/or selling it Australia. It can also be used to license someone else to manufacture an invention on agreed terms. In Australia, patents are administered by IP Australia.

Trademarks:

Australia has a well-developed legal system that protects the intellectual property of businesses and individuals.

In Australia, you and your business can register a trademark as a marketing tool. It gives you the legal protection to stop anyone (in Australia) from using a word, phrase, logo, letter, number, symbol, sound, shape, image or scent that is associated with your brand.

Trademarks are also administered by IP Australia.

Copyright:

A copyright protects the unique way an idea or information is communicated but does not the protect the original idea itself. It protects things like books, films, music, artworks and newspapers/magazines.

Copyrights work differently to other IP. The second an idea or creative endeavor is documented on paper or electronically, it is automatically protected by copyright in Australia under the Copyright Act 1968.

They are NOT administered by IP Australia.

The responsibility of copyrights belongs to the Department of Infrastructure, Transport, Regional Development and Communications.

You can apply for a ‘Copyright Notice’ to help prove ownership of the creative concept, though this is not necessary for protection it can help act as a deterrent for cheeky copycats.

Copyrights usually last for 70 years from the time of inception or 70 years from the authors death.

Registered Designs:

This protects the physical and visual appearance of a product. The protect can be for more than on feature of a product and includes the shape, configuration, pattern and ornamentation of the product.

Some real life examples of registere designs are:
  • the shape of the Coca-Cola bottle.
  • shape of an IPhone
  • shape of the Toyota Hilux.

This right is protected under the Design Act 2003 & the Designs Regulations 2004 and is administered by IP Australia.

Under the Act, some designs can’t be registered. These include:
  • scandalous designs which would shock or offend the community
  • medals
  • certain coats of arms, flags, and emblems
  • bank notes or paper money
  • integrated circuit layouts
  • a design prohibited under the Olympic Insignia Protection Act 1987
  • Indigenous knowledge or design

Circuit Layouts:

A circuit layout us the layout design or set up of integrated circuits used in computer generated equipment. They are a 2D representation of the 3D location of electronic components to an integrated circuit. Sometimes they are referred to as computer chips or semi-conductor chip designs.

Rights are based on copyright law principles and so they are automatically protected upon commercial exploitation and do NOT need to be registered. This means you should probably keep the layout under wraps until your start selling/using it or else it won’t be protected.

Similar to copyrights, circuit layouts are the responsibility of the Department of Communications and the Arts and IP Australia does NOT administer Circuit Layout rights.

As the owner of an original circuit layout, you have the exclusive right to:
  • copy the layout in a material form
  • make integrated circuits from the layout
  • exploit it commercially in Australia.

Commercial exploitation is defined by the importation, sale, hire or distribution of a layout or an integrated circuit made according to the layout.

Plant Breeder’s Rights:

Plant Breeder’s Rights or PBR are special commercial rights to a registered variety of plant. Only new or recently exploited varieties can be registered – and so, if you were to ever invent a new plant variety, this is the type of protection you would pursue.

As long as a plant variant has not been sold with the breeder’s consent for more than 12 months; you can potentially apply to reregister the variant. For overseas plant variants, this buffer period is over 4 years and 6 years for trees and grape vines.

May also choose to make a plant variant available to the public if you wish.

The plant breeder’s rights are administered by IP Australia, is aligned with international protection of new plant varieties and is covered under the Plant Breeder’s Rights Act 1994.

Anyone who intentionally break PBR restrictions could be slapped with a $85,000 fine and $425,000 for corporations.

PBR protection applies for 20 years for most plant species and 25 years for vines (Actinidia (Kiwifruit), BougainvilleaCampsisHedera and Vitis (grapevine)) and trees.

PBR gives you exclusive rights to:
  • produce or reproduce the plant material
  • condition the plant material for the purpose of propagation (conditioning includes cleaning, coating, sorting, packaging and grading)
  • offer the plant material for sale
  • sell the plant material
  • import and export the plant material
  • stock the plant material for any of the purposes described above.
The exceptions to PBR are the use of the variety:
  • privately and for non-commercial purposes
  • for experimental purposes
  • for breeding other plant varieties.
Some specifics covered in the PBR Act include:
  • prior sale limitation
    • Sale in Australia, with the breeder’s consent, is permitted for up to one year prior to applying for PBR.
    • Sale overseas, with the breeder’s consent, is permitted in tree and grapevine (Vitis vinifera) varieties for up to six years and in all other varieties for up to four years prior to applying for PBR.
  • timing of fee payment
  • protection of the registered name and synonym of the variety
  • essentially derived varieties (EDV)
    • A grantee is able to apply for a declaration that another variety is essentially derived from their PBR protected variety and so extend their protection to that other variety.
  • farm-saved seed
    • Farm-saved seed is allowed, unless regulations declare that farm-saved seed does not apply to that particular crop.
  • harvested material or products made from the harvested material
  • exemptions for further breeding, experimental use and private non-commercial purposes
  • protection of transgenic plants, algae and fungi.

Trade Secrets:

Trade secrets are not registered, however it is considered knowledge that can be protected with confidentiality agreements.

Popular examples of trade secrets include:
  • the age-old recipe for Coca-Cola
  • the combination of herbs and spices used in Kentucky Fried Chicken.

Trade secrets in some cases can be more useful as they provide a different kind of protection.

Coca-Cola company for example keeps it’s infamous formula a secret without a patent protection. This way the formula has never had to be disclosed to anyone – as such the formula stays a secret.

Although trade secrets are protected under common law, breaches of confidentiality tend to be harder and mor expensive to fight in court compared to defending registered rights. Which is probably why should have a great lawyer to give you the right advice.

Its important to note that trade secrets don’t necessarily stop someone else from using the same invention or formula as you – of course this would be a sheer coincidence and the probability is low but it is definitely possible.

As you can imagine as well, secrets are hard to keep a secret, especially if you have a lot of employees or you have an employee leave.

You have probably heard the saying – lose lips definitely sink ships – and in this scenario the ship could well be your business or trade secret.

At Green & Associates, we have years of knowledge and expertise in registering patents, trademarks and defending copyrights. We have worked with large corporations, start-ups and small family businesses.

If you or someone you know needs help with their Intellectual Property, we can take all the guess work out of this tricky process and get the protection you deserve. Contact us today to find out more.

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