| Intellectual Property Rights |
| Invention Development Advice - IP Applications | |||
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What is it that gives one business an edge over its competitors? Is it a unique product, a well-recognised trade mark, an innovative process? In business, prospective customers seek these advantages, and without them a potential customer may just go somewhere else.
The following can make your business stand out:
Intellectual Property Rights Intellectual property (IP) is a term used for a collection of individual rights. Each of these areas is dealt with by specific legislation relating to Trade Marks, Copyright, Designs and Patents. The protection of secret or confidential information is also relevant. However, only limited protection is provided by legislation for this.
So what do these rights protect? Properly protected rights generally provide a business owner with a monopoly so that competitors cannot uses the company name, invention, design and methods and so on. The monopoly can be indefinite (as with trade marks and confidential information) or for a set period (as with copyright, designs and patents).
As the Acts are in place for a specific purpose, they have definite sections dealing with protection of rights, and infringement actions are usually fast and inexpensive to bring.
When these rights are highlighted by their owners, and because most are listed on public registers, potential competitors tend to steer well clear from the outset and many would-be disputes are avoided.
In the main, protection afforded by the various Acts is limited to Australia. However, most countries have similar legislation and protection can be sought overseas.
Trade Marks A trade mark is a name or device (termed a “sign”) used to distinguish goods or services from those of other traders.
These signs can be letters, words, signatures, logos, shapes and colours, aspects of packaging and even sounds or scents. For example, a trade mark may be a combination of words, such as “Coca-Cola” or a combination stylised words and a logo. A distinctive aspect of packaging, such as a bottle shape, can also be registered as a trade mark.
Registration and protection Trade mark protection is provided once a sign is registered. This is a relatively inexpensive procedure.
While an unregistered sign may be able to be protected by other means, you must establish that reputation exists in your sign and that use by another similar sign must be likely to cause confusion in the relevant market leading to loss or damage.
Proving this reputation can be difficult, lengthy and costly process. To protect a registered trade mark it is not usually necessary to show use or reputation.
Put simply, a person can not infringe a trade mark or use a similar sign in relation to the same or similar goods or services. Registration lasts for 10 years and can be renewed for ever thereafter, provided that the sign continues to be used.
Choosing a trade mark A commonly encountered problem is when a business wishes to commence trading without first properly considering trade mark rules. Unfortunately, not all names can be registered as a trade mark. Also, someone else may already have the chosen name as a trade mark, or be using it elsewhere in Australia.
It is important to consider as early as possible if a chosen name can be a trade mark and to conduct trade make searches. When choosing a trade mark, the sign cannot have already been registered by another trader in relation to the same or similar goods or services.
Signs that are similar to the chosen sign may also prevent registration from being obtained. A search of the trade mark register is essential.
The sign also must be distinctive. “Distinctive” means that the sign should not refer to a character or quality of the goods or services provided/ this is because other traders should be able to use words that describe what or how good their goods are or what they do.
For example “Fast Couriers” would not be able to be a registered trade mark. Also, it is usually difficult to register trade marks that have geographic references (“Aussie Roofing”) or are surnames (“Collins Body Repairs”).
The best trade marks are created words that have no meaning, such as “Kodak”. Alternatively, English words that do not have any relevance to the goods or services registered (eg “Hedgehog” for gardening services). Graphics or logos can also give slightly descriptive signs, additional distinctiveness, thereby enabling registration.
Business and company names are not trade marks. Registration of a business name or company name does not provide the express right to stop others from using the name. As discussed above, the Acts must be relied upon and require complex and extensive evidence to be led concerning reputation, market definitions and confusion.
Copyright
Copyright is a collection of rights in relation to:
For example, copyright can subsist in books, manuals, magazines, plans and technical drawings, brochures, instruction manuals, advertisements, music, poems, plays and television shows.
Registration and protection Unlike trade marks, there is no register to record copyright. For copyright to exist in a work, it must be original - which generally means being created through some human effort. Copyright arises automatically upon the creation of the material or work and remains protected for the life of the author plus 50 years.
Copyright allows you to restrict the reproduction, copying, use, publishing, performance, broadcast or transmissions of your material. For copyright infringement to exist, exact copying or use of a substantial portion will have had occurred. A substantial portion may relate to the amount copied or to a small but crucial part of the material.
Patents A patent, once registered, protects a new invention or manufacturing process. A patentable product or procedure, provided it complies with the various tests of patentability, may be a totally new invention or an improvement of an existing product or procedure. Also, with a new manufacturing procedure, the resulting product need not be patentable.
Registration and Protection For a patent to be registrable, the invention must be novel and inventive. Novelty is determined by comparing it to the current knowledge in the world at the date of the lodgement. The invention cannot have already been disclosed or used by anyone before. However, the invention may be used for the purposes of a reasonable trial and experiment prior to lodgement. This condition is very strict and legal advice should be sought.
The inventive step prevents patentability for obvious or trivial developments or improvements to known product or procedures. An inventive step requires a shift in thinking when comparing the invention to the world’s knowledge.
A registered patent provides protection for 20 years, and normally this period can not be extended.
The various IP Acts are designed to protect many aspects of a person’s business. Properly protected rights also act to prevent or shorten any disputes, thereby freeing up personnel to build the business rather the spend time fighting competitors.
The rights granted can also be licensed or sold separately or as part of the business, therefore they add value to a business by protecting the things that are valuable.
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