Intellectual Property

The term ‘Intellectual Property’ covers a range of legal rights which can arise either through statute or common law. You may already have some of these rights, such as Copyright or Trade Secrets, you may be able to acquire others such as Patent rights by following the Registration process. The purpose of this Introductory Kit is to help you decide which forms of protection are the most suitable for your ideas and how to ensure that these ideas are adequately protected.

Patents

Patents are generally viewed as the strongest form of protection for practical invention, devices and industrial processes.

The owner of a patent has the exclusive right to exploit the invention covered by the patent.

It is usually possible for one patent to cover many forms of an invention, hence the broad nature of patent protection. In order to receive a patent, the invention should be both new and inventive.

As well as filing patent applications in Australia, it is also important to consider if your idea should be protected overseas. If you need to obtain protection overseas, applications must be made soon after the Australian application.

Collison & Co. have associations with Patent Attorneys and legal firms involved in Patent work in most countries. We can help you to get your invention protected in many countries.

If you think your idea may be patentable see us before disclosing the idea to anyone else.

Once an idea has been made public any patent application filed will be invalid and you will have forfeited any right to protection.

Trade Marks

A Trade Mark is a name, logo or other indication that helps distinguish your products and services from those of other traders. Trade Marks have the advantage of potentially lasting forever and can in some cases be one of a company's most important assets.

Unlike Patents and Designs it is possible to use a Trade Mark before applying for registration, and in some cases, it is necessary to show that the Trade Mark has been used before it can be registered.
Registering a Trade Mark gives you a legal monopoly of that Trade Mark for your goods and/or services within Australia. In addition to registration of Trade Marks there are also common law rights. These protect your goodwill and reputation from ‘passing off’ by other traders.

If you are involved in exporting your products overseas, it is important to consider protecting your Trade Mark overseas, as in many countries you can only acquire rights by registering your Trade Marks.

Registered Designs

Any design for an article which is a new shape for that article or which is a new pattern applied to that article can be registered as a Design. For example, a new shape for a chair or bicycle helmet can be registered as a Design. The protection given for a registered design is based on the visual appearance of the article and so this form of protection is useful where the article itself is not new but the shape is new.

See our leaflet "Australian Registered Design" for more details on how to acquire this type of protection.

As with patents, it is important not to show your new design to other people before you have applied for a Design Registration.

Plant Breeder's Rights

New, distinct and homogenous varieties of plants can also be protected. In this case, the owner of the right gains control of the right to reproduce the plant.

Before the right is issued it is necessary to conduct comparative growing trials against the nearest known variety of the species. Please contact us if you require further information in this regard.

Other Forms of Protection

In addition to the forms of protection outlined above there are also many other rights which you may acquire.

Copyright

Copyright protects original literary or artistic works (the terms literary or artistic are interpreted broadly and include most plans, drawings or artworks). There is no registration procedure for Copyright protection, the rights arise automatically on the creation of the work. But beware, Copyright will not protect the idea or concept behind a work, only the particular expression of the idea. Thus, for any useful ideas, patent protection should always be considered in the first place. Nevertheless, in the case of original computer software Copyright has been found to be an extremely valuable tool.

Original Circuit Layouts

Similarly, original circuit layouts applicable to integrated circuits may also be protected by the Circuit Layouts Act. As with Copyright, this is an automatic but limited right and is no substitute for patent protection.

Goodwill

The Trade Practices Act and common law rights against passing off also help you protect your Goodwill and the Goodwill of your business from misleading or deceptive conduct by other traders. Whilst common law actions are expensive to pursue, they also have a flexibility which is not always available under the various statutes mentioned above.

Licensing

Patents, Trade Marks and Registered Designs are forms of property, which means you can sell them in the same manner as you might sell other properties. You can also lease these properties to third parties (licence them).

By licensing the right to use your intellectual property you can maintain ownership of the rights and collect royalties from the users.

Collison & Co can assist you in the preparation of licence documents which ensure that you optimise the return from your intellectual property without jeopardising your rights.

Searches

A search will save time and money by finding similar ideas or trade marks which have already been registered. Patents will not be granted for old ideas so it is advisable to have a preliminary search conducted before investing in a patent application. A search will help you decide which aspects of your invention or design are new and therefore what breadth of protection you could obtain.

For new trade marks a search will show if anyone else has registered that or a similar trade mark. Collison & Co maintain a sophisticated, computer-based search facility which includes access to Australian, US and European Patent and Trade Mark data.

By using this facility we can provide you with a comprehensive and up to date report on the novelty of your idea.

Infringement

If you have protection for your idea, you can take action to stop infringement and possibly collect damages from the infringer. Often, the notification of the existence of your rights to a third party will be sufficient to prevent any further infringement. When this does not succeed it may be necessary to consider court action.

Collison & Co can assist you in taking action against infringers and in opposing grants of intellectual property which may impinge on your rights.