The Ultimate Guide to Types of Intellectual Property

What Is Intellectual Property?

Intellectual property is intangible property, created through intellect or creativity.  It can be a name, a creation (such as a new product, service or process) and even new plant breeds.

The World Intellectual Property Organisation defines intellectual property as ‘creations of the mind or intellect including inventions, literary and artistic works, designs, symbols, names and images used in commerce.’

In Australia, trade mark law, patent law, design law and copyright law (among other things) all fall under the umbrella of intellectual property (IP) laws.

Your IP is one of the key assets to your business and it is crucial that you understand how to protect it.  Some forms of IP rights (for example trade mark, design or patent rights) are registered rights and need formal application, examination and registration before any rights to ownership are certain.

Different types of IP have differing IP protection rights.

In this guide, we’ll look at the most common types of IP rights and examine each of them in more detail.

The most common types of IP rights are:

• Patents
• Trade marks
• Registered designs
• Copyright
• Circuit layout rights
• Plant breeders’ rights
• Confidential Information and Trade Secrets

Patent Rights

A patent is the right granted to new and useful inventions including processes, devices, substances and methods.  Rights are not automatic and registration is required in order to claim protection and ownership.

Until your patent is filed, it is imperative that its existence remains a secret.  You should not sell, demonstrate or promote your invention before you file a patent application.  In fact, you should not even discuss it – even with a family member, close colleague or confidante – before filing your application (unless proper non-disclosure agreements are signed and in place) as you could risk losing the opportunity to patent it.  Failure to keep your invention or innovation top secret before it is protected by a patent may result in a competitor gaining access to your intellectual property and using it to their advantage. MMW Trade mark Services strongly encourages clients to speak with a registered patent attorney as early as possible to determine if/what patentable properties exist within the particular ‘invention’.

Trade Mark Rights

Trade mark registration provides statutory protection for words, phrases, logos, sounds and other distinctive signs that traders use to distinguish their goods and/or services from others.

Australia (like most countries) follows a system of classes for goods and services for registration of trade marks.  Trade marks are registered for 10 years, and may be renewed for further 10-year terms. Registration may be removed if a trade mark has not been used in Australia for the claimed goods and/or services for three consecutive years.

Design Rights

Rights are not automatic and registration of a design is necessary in order to claim protection and ownership.

Design registration basically protects the ‘look’ of a product in terms of shape, configuration and ornamentation.

A design is defined as ‘the overall appearance of a product resulting from one or more visual features’ and in order to be registered, the design must be new and distinctive when compared to similar products.  Generally, the disclosure of a design anywhere in the world by anyone would mean it is no longer registrable as it is no longer new. However, recent legislation changes in Australia there is now a 12 month grace period should the design be disclosed prior to filling an application. However, there are some scenarios where the grace period will not be available. A patent attorney will be best placed to assist with your design enquiries. Let Mark My Words Trademark Services know if you would like a referral.

Copyright

Many people don’t realise that copyright rights are automatic in Australia.  There is no requirement for official registration of original ‘works’ such as literary works, musical works, artistic works (including photographs, engineering drawings, plans and buildings), dramatic works, films, sound recordings and audio and television broadcasts.  Protection is automatic.

As a rule, copyright belongs to the creator or author of the original works unless a different agreement exists.

Copyright does not protect an idea or a concept, but rather protects the way in which that idea or concept is expressed.  Copyright only protects the way that the original author presents or constructs that idea – it doesn’t prevent anyone else from creating their own original work about the same thing (eg a written work on the same subject matter or theme).  It simply protects the way that you have already chosen to express the idea.

Copyright owners have exclusive rights to use their creative work.  This includes the right to:

• reproduce their work
• publish their work
• perform their work in public
• adapt their work

As the creator, it is also your responsibility to monitor potential infringers and enforce your rights. This is especially important if the work is commercialised and it will ensure that your copyright work retains its value.

You are entitled to display the copyright symbol (©) if you are the original creator of the works.  For example, we put © Mark My Words Trademark Services Pty Ltd at the end of our blog posts or other original content.  This is not mandatory in Australia, but some people like to do it to display ownership of the copyright and deter infringers.

If you intend commercialising your work into the international market, you need to be aware that copyright laws vary from country to country.  If international copyright protection is important to you, you should discuss the requirements for copyright protection in other countries with an IP professional.

Circuit Layout Rights

As with copyright laws, circuit layout rights are automatic and official registration is not required.

Circuit layout rights essentially protect original layout designs or plans for computer chips and integrated circuits used in computer-generated designs.  These are often extremely complex and valuable.

Plant Breeders’ Rights

These rights protect the commercial rights of new plant varieties that are distinguishable, uniform and stable.  Rights are not automatic and registration is needed in order to claim ownership and protection.

Application for plant breeders’ rights is a complicated process and can be lengthy, so it is advisable to get professional help if you are considering registering a new variety of plant that you have bred.

A Business Name

A business name is a trading name and is essentially just an alias for the person/people conducting the business.  Owning a business name does not give you any exclusive rights to use the name, nor does it prevent others from using or registering the same (or a similar) name.

A business name is only considered to be ‘intellectual property’ if it is a registered trade mark.  When you register a business name, it is important to ascertain whether or not someone already has trade mark rights to that name or anything deceptively similar.  If they do, and you continue to use that same business name, you could be infringing on their rights.

Unlike a business name, a registered company is a legal entity but owning a company name does not give you exclusive rights over the use of that name unless you have registered it as a trade mark.  In other words, a company name itself is not intellectual property unless it is also a trade mark.  As is the case with registering a business name, you should always check for any potential trade mark infringements when you register a company name.

Confidential Information and Trade Secrets

Similar to copyright, official registration of confidential information and trade secrets is not required.  Rights are automatic.

IP Australia defines a trade secret as follows:

‘A trade secret can be any confidential information of value. Unlike other IP rights, trade secrets are protected by keeping them a secret, and are not registered with IP offices. The protection of a trade secret will cease if the information is made public, and trade secrets do not prevent other people from independently inventing and commercialising the same product or process.’

Steps need to be taken to protect confidential information and trade secrets  through restricting access to the information and getting people to sign confidentiality agreements.  This enables action to be taken against someone who is in breach of the confidentiality agreement. This can be an effective strategy where very few people need to know the information/secret and where the product or service would be difficult to reverse engineer.

This strategy is also worth considering in view of the relatively short life spans of patents. If you file for a patent on your ‘invention’ you will need to disclose the details. Ultimately, once the patent expires the details will be there for all to see. Keeping the details secret could create a longer lasting monopoly.

Domain Name

A domain name is the address of your website (eg mmwtrademarks.com.au) and it is your business’ online identity.

If you are planning to have a business website, you should always check if your intended business name is available as a domain name.  It is always preferable to have the same domain name and business name (or at least have them very similar) so as to avoid confusion in the marketplace.

Once you have settled on a domain name, you need to register it through a registrar or reseller listed on the .au Domain Administration Ltd (.auDA) website.

You will only have an exclusive right to use the domain name if it is registered as a trade mark (similar to business names).  A domain name may not considered IP in itself unless it functions as a trade mark.

If you are applying for a trade mark that includes the full domain name, another important tip is to ensure that the applicant for the trade mark registration and the owner of the domain name are one and the same, otherwise your application may be refused.

The Lifespan of IP Rights

The rights to various types of intellectual property differ in their lifespan.

Following is a snapshot of the different types of IP and how long you have exclusive rights over them:

• Patents – Max 20 years for standard patents (slightly longer for pharmaceutical patents)
• Trade marks – Once registered, your trademark will be protected for an initial period of 10 years and is renewable every 10 years thereafter
• Registered designs – Maximum 10 years
• Copyright – General copyright extends for the duration of the life of the author or creator, plus a further 70 years. Timing can depend on the date of publication, rather than the date on which the work was created
• Circuit layout rights – Maximum 20 years from the first commercial iteration
• Plant breeders’ rights – Max 20 years for most species, except for trees or grapevines which are max 25 years
• A business name – No rights, but business names are registered for a one or three-year period and need to be renewed accordingly.
• Confidential Information and Trade Secrets – no maximum lifespan. It can become increasingly difficult to maintain trade secrets over an extended period of time.

As shown by this guide, there are several different types of Intellectual Property.  Rights for some forms, like copyright, exist without the need for formal registration, whilst others require formal application and examination before you can rely on that right.

Depending on the needs of your business, you may have several of these types of intellectual property rights and may require different IP practitioners to assist you in securing them.  You will need to go through a registration process for most of them. It is important to know how to protect your IP and to approach the registration process in the correct way so as to minimise the risk of losing rights or not achieving valid ones.  Engaging a professional is the best way to ensure that your rights and your valuable IP are protected.

This blog post dives deeper into the differences between patents and trade marks.

MMW Trademark Services are a trade marks attorney firm and our team has contacts in all areas of IP, so we are well-placed to answer any queries relating to IP rights and to connect you with suitably qualified professionals where needed.  It is a complex area of law, and it is always best to get expert advice from the outset in order to maximise your chance of success.