Intellectual Property in Australia
Intellectual property (IP) is the general name given to the laws covering patents, trade marks, copyright, designs, circuit layouts, and plant breeder’s rights.
Intellectual property laws protect the property rights in creative and inventive endeavours and give creators and investors certain exclusive economic rights, generally for a limited time, to deal with their creative works or inventions.
IP Australia is the federal government agency responsible for granting rights in patents, trade marks and designs. For information on intellectual property and how it applies to your business, visit IP Australia's Smart Start website.
Read more about these different types of intellectual property:
A patent is a right granted for any device, substance, method or process, which is new, inventive and useful.
A patent is legally enforceable and gives the owner the exclusive right to commercially exploit the invention for the life of the patent. You have to apply for a patent in order to protect your invention, it isn't automatic. All applications for patents are examined to ensure they meet the necessary legal requirements for granting a patent.
A trade mark can be a letter, number, word, phrase, sound, smell, shape, logo, picture, aspect of packaging or any combination of these.
A registered trade mark gives you the exclusive legal right to use, license or sell your goods or services in Australia. It distinguishes your goods and services from others in the marketplace.
Anyone who claims to be the owner of a trade mark can apply for registration of that trademark. The registration period is initially for 10 years and continues indefinitely as long as the renewal fees are paid every ten years.
Remember that registration of a business name does not in itself give you any proprietary rights - only a trade mark can give you that kind of protection. Ensure you have exclusive use of your name now and in the future throughout Australia by registering a trade mark.
Copyright provides legal protection for people who express ideas and information in certain forms that include writing, music, visual images, moving images and computer programs.
It is designed to prevent the unauthorised use by others of a work that is the original form in which the idea or information has been expressed by the creator.
Copyright protection is free, there is no registration system. But it is advisable for copyright owners to place a copyright notice in a prominent place on their work.
Common law protects you from people stealing your trade secrets, breaching confidentiality agreements and passing off trade marks.
Make sure you back up your trade secret with a signed confidentiality agreement with every person who has knowledge of the secret. A confidentiality agreement can stop your employees from revealing your secret or proprietary knowledge during and after their employment or association with your business.
If you are the owner of a product then you can register its design to protect the visual appearance. Registration protects your design from being used without your permission. You can register your design for up to ten years.
Your design must be new and distinctive to be registered. Conduct a search of the IP Australia databases to make sure your design hasn’t already been registered.
Circuit layout rights automatically protect original layout designs for integrated circuits and computer chips. There is no requirement for registration for the granting of rights to the owner of a layout design.
The Attorney-General’s Department administers the legislation for automatic rights to circuit layout rights.
Plant Breeder’s Rights (PBR) are exclusive commercial rights to a registered variety of plant. Varieties protected by PBR may only be produced for sale, sold, imported, exported or conditioned with the authority of the owner.
If you are the original breeder of a new variety of plant, or have acquired ownership rights from the original breeder, then you can apply for Plant Breeder’s Rights. Please note that only new or recently exploited varieties can be registered. Apply for the rights using application forms available from the PBR Office.