Different types of intellectual property are protected in different ways. The below information gives a very broad overview of some basic steps you can take to protect IP. However, we recommend that advice is obtained in order to ensure appropriate protection is implemented.
It is also worth noting that any IP protection is only as good as the extent to which that protection is enforced.
Trade marks are best protected through trade mark registration.
Australia is known as a ‘first to use’ country. This means that the first person to use a trade mark in Australia can have rights in that mark. As such, there is some protection available at common law for unregistered trade marks through what is known as ‘passing off’.
For passing off you need to prove that you have a reputation in the trade mark. On the other hand, if you have a registered trade mark you are presumed to own that trade mark.
Trade marks can be protected through trade mark registration. The initial period of protection is 10 years and the marks can be renewed every 10 years without limitation.
There can be a complex interplay between registered and unregistered trade marks. If this issue arises for you it is recommended that you get advice.
Copyright protection is automatic.
However, it is good practice to include copyright notices on all copyright material. This can be as simple as ‘© Jo Bloggs 2014’, or much more complex depending on the nature of the work.
You should also include copyright terms on websites and in all agreements with contractors or suppliers.
As with copyright, moral rights protection is automatic. However, you can give consent to the doing of acts that would, without your consent, infringe your moral rights. If you are engaging someone to create materials on your behalf, obtaining moral rights consents is recommended.
Confidential information/trade secrets
Confidential information and trade secrets should be protected through confidentiality agreements. If you want to talk to someone about a new business idea, get them to sign a confidentiality agreement first. Have confidentiality provisions in your employment and contractor agreements. Where there are trade secrets that are key to the business, like a product recipe, limit the extent of any disclosure to a few key people.
Relevant inventions and designs should be protected through registration.
We can help you to identify what IP rights apply to your business and the best way to protect those rights.