In the world governed by the use of cyberspace, where any person from any part of the world can find any information by simply saying “Hey Google”, the protection of a businesses’ intellectual property has never been more important.

Despite this, the concept of intellectual property remains a mystery to everyday business owners which creates risks to their businesses’ goodwill, reputation and future success.

So what is intellectual property and how can we mitigate these risks?

What is Intellectual Property?

Intellectual property (or IP) is the means by which the law recognises the ownership of intangible property that is created inside a person’s mind. Examples of intellectual property includes ideas, inventions, designs, logos and brands. Commonly, a businesses’ goodwill and reputation will become attached to its intellectual property. This is why it is extremely important to ensure that your intellectual property is protected.

There are several different ways a person or company can protect its intellectual property including:

  1. Patents;
  2. Trademarks;
  3. Copyright;
  4. Registered Designs; and
  5. Plant Breeders rights.

The two most common forms of intellectual property protection are trademarks and copyright.

Trademarks

A trademark is the registration of a sign, name or image that represents or is associated with your businesses’ brand. This image can include words, phrases, letters, numbers, colours, packaging, business names, shaping and/or pictures.

Two popular examples of trademarks are the distinctive shade of purple which is associated with Cadbury or the words “Band-Aid” which is registered to Johnson & Johnson. 

Commonly, small businesses will register their business name or logo as a trademark to ensure that no other competitors can utilise the same business name or logo. This is extremely important as a business name and/or logo is what differentiates that business from its competitors.

A trademark will only come into existence once it has been properly registered with IP Australia. Once registered, no other person or entity can utilise your trademark without your permission for a minimum period of 10 years.

It is important to note that there is a difference between the registration of a trademark and the registration of a business name with the Australia Securities and Investment Commission. For further information, please see our article entitled “Business Names vs Trademarks”.

Copyright

In contrast, copyright is an implied right created by the Copyright Act 1968. Copyright protects the expression of an idea by an individual or business by restricting other people from reproducing your work without your permission. There is no requirement in Australia to register copyright over your work – it operates automatically at the time the work is created.

A common mistake amongst individuals is the assumption that copyright will protect any idea that you create. This is not the case. Copyright only applies to original ideas that are expressed in material form. This is because copyright only seeks to protect the actual expression of ideas, not the ideas themselves. This means that for copyright to be implied, your idea must be expressed to the public in a tangible form such as a song or published on a website.

For example, say you have a brilliant idea for a new article for your website. You share your idea with a work colleague who then writes the article and posts it on the website under their name. As your idea was not expressed in material form (i.e. as you did not actually write the article) your idea was just an idea and you will have no implied protection under copyright.

It is important that business owners are aware of Copyright not only to ensure that your expression of ideas is protected but to avoid inadvertently infringing on another business or individuals’ copyright as that in itself can have a detrimental effect on your business. Commonly, a person or business will claim copyright over their material by including a statement to the effect of “© 2020 Moore Lawyers”.

Key Takeaways

The key takeaways for small businesses are that:

  1. the intellectual property of a business is an extremely important asset that should be properly protected; and
  2. there are many options available for small businesses to protect their intellectual property.

If you have any concerns regarding the protection of your intellectual property, please contact one of our experienced solicitors on (07) 3186 8669 or Book a Consultation now to book in a free 15-minute consultation with one of our experienced solicitors so that we can discuss the best way to protect your businesses’ future.

Stephanie Horton
Solicitor at Moore Lawyers