Intellectual property basics for your small business

7 min read
Leeha Debnam

Intellectual property (IP) protection can be tucked away at the bottom of any new business owner’s to-do list. There are so many other things to be thinking about, right? Like choosing a business name, registering a domain, building a website — not to mention branding. But legally protecting your original ideas is definitely a task worth exploring.

Let’s define exactly what intellectual property is before we list your options for protecting yours.

Editor’s note: Make sure to nail down the domain name for anything you’re planning to trademark or patent — that way, copycats won’t be able to make money off your ideas online. Check to see if your domain name is available by typing it into the box here.

What is intellectual property?

IP Australia defines intellectual property as:

“... the property of your mind or proprietary knowledge. It is a productive new idea you create. It can be an invention, trade mark, design, brand, or even the application of your idea.”

Intellectual Property Smartphone Home Screen
Software apps are one example of intellectual property worth protecting.

You may not know it but we interact with intellectual property in all its forms daily. For example, businesses have intellectual property rights associated with:

  • Products you use
  • Logos you see
  • Movies you watch
  • Songs you listen to

These rights protect them from having their unique ideas, products or services used by others without their consent or an appropriate licence.

Whether you’re still investigating your start-up business model or you’re already playing in the big end of town, your intellectual property has value. It can separate you from your competitors and make you stand out in your industry. It can also add an extra revenue stream through licensing and sales.

Different types of intellectual property rights

In Australia, the most common types of intellectual property protections are patents, trade marks, copyrighting and design protection.

1. Patents

Intellectual Property Woman Wearing AI Headset

A patent is a legally enforceable right for a:

  • Device
  • Substance
  • Method
  • Process

A patent stops others from manufacturing, using and/or selling your invention in Australia without permission.

There are two types of patents, and each will provide you with a different level of protection:

  • A standard patent will give you long-term protection for up to 20 years from the day you lodge your application.
  • An innovation patent only protects your invention for up to eight years.

All Australian patent applications must be lodged with IP Australia, and you’ll need to demonstrate that your invention is new, useful and inventive or innovative.

2. Trade marks

Trade mark intellectual property protection is often thought to be relevant only to big brands like Google, Nike and Apple. But don’t let this deceive you.

Even as a small business or entrepreneur, trade mark protection is worth considering if you’ve got a unique way of distinguishing your products and services in the market.

It’s wise to make sure that you’re not violating anyone else’s trademark by first using IP Australia’s trade mark search.

If your search doesn’t bring up a trademarked product that’s similar to yours, you can apply to register your trade mark through the IP Australia website. But don’t jump the gun, you’ll need a good understanding of the:

You must also have a prepared representation of your trademark and be able to pay the required fee.

3. Copyrighting

Copyright protects the original expression of your ideas, but it won’t protect the ideas themselves. It mostly offers protection for:

  • Books
  • Films
  • Music
  • Sound recordings
  • Newspapers
  • Magazines
  • Artwork

But copyright protection can also apply to such things as databases or computer programs.

In Australia, copyright protection is automatic, free and you don’t need to register it.

Intellectual Property Screenplay

Your work is protected as soon as you document it — either on paper or electronically. And although not necessary, many creators continue to use a copyright notice on their work that includes the owner’s name and date. For example, © Leeha Debnam 2020.

The benefits of doing this are twofold: it names you as the owner, and it warns off anyone intending to infringe on your rights.

Be aware that copyright protection doesn’t apply to:

  • Ideas
  • Concepts
  • Information
  • Styles
  • Techniques
  • Names
  • Titles
  • Slogans

If you’re wondering how long the protection lasts, it’s generally for the life of the creator plus 70 years. Where the copyright protection is reliant on the year of publication, it will last until 70 years after the date that it is first published.

4. Design protection

If you’ve got a unique new product, registering the design is worth your time and effort because it gives you the exclusive rights to use, license and sell your design.

Intellectual Property Light Up Shoes

According to IP Australia, a design is what makes a product look the way it does. It includes its:

  • Shape
  • Configuration
  • Pattern
  • Ornamentation

When you take one (or more of the above) and apply it to a product like a suitcase or a shoe, you’ve potentially got a unique design worth registering. A word of warning though: registering your design isn’t an easy process.

There are five requirements to registering a design, and it can be a complex, costly and lengthy process.

If successful, your design protection lasts for five years, with the option to renew for an additional five years, extending protection to a maximum of 10 years.

Want to see the design registration process in action? Check out “The ideal design journey” from IP Australia.

Other types of intellectual property protection

Now we’ve covered the main types of IP, it’s worth mentioning the following additional types of protections that could be relevant to you, depending on your business:

  • Plant breeders’ rights protect the commercial rights of new plant varieties.
  • Trade secrets protect any confidential information, including secret formulas, processes and methods used in production.
  • Circuit layouts are the layout designs or plans of integrated circuits used in computer-generated equipment.
  • Geographical indications, or ‘GI,’ identifies a good as originating in a specific region where a particular quality, reputation or other characteristic of the good is attributable to that geographic origin.

For details on each of these, do a search on IP Australia.

When to consider intellectual property protection

Intellectual property is a valuable asset for your business — literally. Should you decide to sell your business, a patent could well increase the price. So it’s important to investigate what, if any, IP you have and how you can safeguard it early on.

Don’t make the mistake of waiting until it’s too late.

Be smart and get strategic. Developing an intellectual property strategy will guide your journey and help you make decisions about what to protect and how you can commercialise your IP. You’ll also need to factor in key considerations like cost, timing and value.

Don’t forget that conducting research is critical to ensuring that you’re not infringing on anyone else’s intellectual property.

What to do next?

Now that you know what intellectual property is and the different types of protections available, you’ve probably worked out that this area can be complex. It can also take a lot of time and effort to make sure you’re registering the correct type of IP for your business.

The basic steps for registering your intellectual property are:

  1. Identify your IP
  2. Understand your options
  3. Don’t tell anyone
  4. Research the market
  5. Register your idea or brand

To avoid costly mistakes, seek advice from a lawyer who specialises in intellectual property. Consult other professionals as needed for the latest advice on protecting your intellectual property.

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