Have you ever had that burst of inspiration and creativity and decided to make it into something tangible like a business or invention? You decide to launch this idea and startup company that will put your idea or technology out in the market for consumers to use.
There’s always a threat of your idea being copied and used by competitors, which puts you in a precarious situation. This is where intellectual property (IP) rights come in.
Intellectual property rights for start-ups are a crucial aspect to consider. With most information circulating the Internet, it’s easy for random people to get a hold of other original ideas and use that idea for profit. This is known as IP infringement, which leads to counterfeiting and piracy. Fortunately, Australia’s Intellectual Property Law aims to protect your company’s interests and properties.
In this article, we’ll discuss the basics of intellectual property rights entrepreneurship, what it entails, the different types and the benefits of enforcing the property law act to safeguard your claims.
How Does Australia Recognise and Enforce Intellectual Property Rights?
Intellectual property law provides an exclusive right for IP owners to use their intellectual property for their own commercial gain. It is in the interest of the governing body to offer this exclusive intellectual property rights to owners as it gives business people the incentive to push the boundaries of technology and innovation. This is a crucial aspect of ensuring future economic growth and development.
In Australia, federal legislation and the common law protect intellectual property rights. Australia is also a signatory to the World Trade Organization agreement on trade-related aspects of intellectual property rights. This worldwide governing body sets the standards for intellectual property enforcement and protection.
Australia is also a signatory to several conventions that help safeguard the different types of IPs all across the globe, such as the:
- Berne Convention for the Protection of Literary and Artistic Works;
- Madrid Protocol;
- Patent Cooperation Treaty; and
- Paris Convention for the Protection of Industrial Property.
Startup companies can feel secure when registering their IPs in Australia as Australia strictly enforces, oversees and upholds the rights of intellectual property owners.
What Are the Types of Intellectual Property?
There are various types of intellectual property which can be protected by Australian law. Startups must identify in what types or categories their idea falls for easier registration and to know where to establish their presence in the market.
1. Trademarks
Trademarks are often mistaken for brands. You should note that they’re distinct from business brands, which are generally broader in concept and are irrelevant in this context. Trademarks include letters, numbers, phrases, symbols, packaging, logos, images, names or a combination.
Registered trademarks can benefit from the protections of the Trade Marks Act 1995 (Cth) and the common law. Common Law allows parties to protect unregistered trademarks. Regulatory bodies also have the power to remove any unused trademarks in Australia three years after the registration date.
It’s also crucial to remember that in Australia, protection for a trademark is granted to the person who first used the trademark, not the person who first registered it. If issues arise, like a person who didn’t use the trademark first but seeks to register it, there is a period of two months following the registration of the trademark that the person who first used the trademark can object.. If the person who first used the trademark doesn’t object, that person may lose the right over the trademark.
2. Copyright
Copyright claims operate in a different manner and do not require registration. Copyright is automatically given to an owner or author upon its creation. The Copyright Act 1968 (Cth) protects intellectual properties that fall under this category. The Department of Communications and the Arts is the regulatory body who governs the use of copyrights in Australia.
Any original artistic, literary or musical expression made and published in Australia or by an Australian is automatically granted a copyright. Protection lasts for the author’s whole lifetime plus 70 years after their death.
3. Patents and Designs
Confidentiality is a crucial aspect of both patents and designs.The Patent Act 1990 (Cth) indicates that owners should initially register their inventions in accordance with the act to ensure their rights are protected. The same process should be followed for designs in accordance with the Designs Act 2003 (Cth).
Any leak or mention of these patents and designs in the public space can mean losing the right to patent or design. To avoid any leaks of your creations and invention to public knowledge, contact Madison Marcus to prepare a non-disclosure agreement (NDA) for execution by any individual with any prior knowledge of the invention/design.
How to Effectively Use Intellectual Property to Benefit your Startup
Registering your intellectual properties does not come cheap and requires the utmost proof of your ideas’ originality. Assuming that it is original and can be a source of commercial gain, registration is only the first step in maximising the profits from your intellectual property.
For example, in the case of trademarks, it’s best to do your own market research and test your product first before registering the trademark. Common law will protect the first user of the product or brand.
On the other hand, copyright is already granted upon an author publishing the creation. However, it’s best not to give away your copyright before you’ve created it. You may choose to use it as leverage to get the best benefits during business deals. To ensure you retain control of your copyright, you should have a properly worded intellectual property clause in your business agreement. Please do not hesitate to contact Madison Marcus should you require any assistance in drafting an intellectual property clause.
Patentable products are quite complex as these inventions have to be kept hidden from public knowledge meaning that you are unable to test the market for the product’s liability. To work around this you may choose to conduct market research amongst a few people representing your target audience on the condition that they sign an NDA..
How Madison Marcus Can Help You
There is always a risk of other people infringing on your product but you have to remember that it can also be the other way around. Do your due diligence and make sure that your intellectual property is unique, new and innovative. It is always safer to assume that an idea of yours is not new and conduct research regarding existing intellectual property that exists within the market.
If you have enquiries or require any assistance in protecting your intellectual property rights, Madison Marcus is a commercial law firm in Sydney that you can trust. For all enquiries, contact us here.
