Intellectual Property

Practioners in this area

While it is often large organisations and multinational corporations that usually attract media coverage when defending their intellectual property rights, the truth is intellectual property (IP) rights and protections are not exclusive to large businesses. Many of today’s iconic brands and products came about thanks to an entrepreneurial individual taking the necessary steps to protect their IP. From Mervyn Victor Richardson’s lawn mower, to hoist clotheslines and even wine casks.

Nash Allen Williams & Wotton solicitors have the knowledge and experience to advise individuals and businesses on matters relating to intellectual property. From performing the necessary searches for existing IP, through to applying for, securing, and defending IP rights.

Why Protecting Intellectual Property Matters

Although copyright in Australia is free and automatic, it mostly applies to literary works and works of an artistic nature – music, certain computer programs, paintings, scripts, and completed TV and film productions. It does not apply to ideas, concepts, names, or slogans.

This means that your business logo or name, and any ideas or designs you have for a new product or service are not protected until you apply for the proper rights. Even a completed product, whether it is a single prototype or already being sold and distributed, is not protected until you secure the IP rights.

Securing intellectual property rights protects your ideas and products from being copied and sold or used by somebody else. In simple terms, protecting intellectual property ensures that the original developer enjoys the full commercial benefits of their design or innovation. This not only drives and encourages innovation, but it also encourages creators to keep investing in research and development. Ultimately, it supports business growth.

And protecting your intellectual property also protects consumers by keeping fake or counterfeit versions of your products off the market.

Defending Your Intellectual Property

Securing IP rights for your business name, logo, products, or designs does not mean people won’t infringe on them. Sometimes it might be unintentional, but even then, you need to take action. There are a number of steps involved in defending IP rights, which include showing that the relevant rights are still in place, and that you are the owner of these rights. IP rights are not perpetual; some can be renewed as required, while others lapse after a fixed time. If you still hold the rights being infringed, you then need to also show that the other product or design is a full or substantial copy of yours.

While you should continually monitor the marketplace and industries you operate in for infringement, it is best to seek legal advice on how to respond.

Intellectual Property FAQs

What Are the Different Types of Intellectual Property Rights?

Depending on the nature of your intellectual property, there are several rights you can apply for. They include:

• Patents – for protecting new inventions and new processes.
• Trade marks – to protect logos, words and other types of branding. Note that not all names or words can be trademarked.
• Copyright – Applies automatically in Australia and protects art, writing, music, film, and computer programs.
• Registered designs – for protecting the visual design of a product, which could include distinctive packaging.
• Circuit layout rights – to protect layout designs or plans of circuits used in computer-generated designs. Like copyright, it applies automatically in Australia.
• Plant breeder’s rights – these protect the commercial rights of new plant varieties. Only applies to new or recently exploited varieties.

Is Data Considered Intellectual Property?

Australian copyright law allows collected data to be protected by database right, under certain circumstances. This includes that there needs to have been significant investment in collecting and verifying the data. The data must also be stored in a methodical way in a defined database and be individually accessible.

How Does One Protects Intellectual Property?

It is crucial that you apply for and secure all relevant IP rights before announcing or discussing your ideas with anyone. This includes revealing your logo and designs.

However, you should also take additional steps to protect your IP by having non-disclosure agreements (NDAs) and confidentiality clauses drawn up for employees and contractors that might have access to proprietary knowledge or secret recipes related to your products, services, or designs. Have these drawn up by lawyers specialising in intellectual property rights to ensure they are valid and don’t have any legally exploitable loopholes.

Can Intellectual Property Be Sold?

Intellectual property rights can be sold or transferred, or you can licence your IP. There are legal complexities involved with each option, so always work with lawyers before selling, transferring, or licensing your IP. It is also important to remember that when selling or buying a business, IP rights are not automatically included.

Does My Employer Own My Intellectual Property?

Intellectual property you create using your employer’s resources, materials, and time is owned by your employer. You own intellectual property for anything you created outside of work time, using your own resources.