What is Intellectual Property?

Intellectual Property (IP) refers to the rights that arise when someone creates or develops something that is original or new. These new creations or developments, which may be brands, artistic works, designs, inventions, etc., may then be protected by a number of complex laws governing intellectual property. The four main areas of IP that are provided statutory protection are; patents, trade marks, designs, and copyright.

If you or a company has IP, then you may have Intellectual Property Rights (IPRs) to protect yourself against others using, or taking your IP. However, some IP rights don’t apply automatically, meaning you have to actively protect your IP. You must register your IP in the country where you are seeking protection in order to have your rights recognised and protected. If you successfully register your IP you must be aware that each IP right has a period of time for which it can be registered, enforced and protected. 

Regional Protection

Most IP rights are regional, meaning that the territory in which you have the IP right is the one that deals with any issues with your rights should they arise. If you want to trade in several countries, then you must have your IP rights registered, protected, and enforced in those jurisdictions. If you have been granted a trade mark, design, or patent in one region, it does not give an automatic granting right in another. All forms of IP need to be specifically assessed and approved in each country in which you intend to do business. If you want your trade mark, design, or patent recognised in another country then you must file an application in the countries in which you intend to trade and/or an international application with WIPO.

Different Systems

Every country's IP system is different, and it is important to understand how they work and what is involved in applying to protect your IP. In most countries standard patents last for 20 years, pharmaceutical patents for 25 years, copyright for between 50 and 100 years after the death of the creator, and designs for 10 years. During the years of registration certain fees and conditions have to be met for both designs and patents to be afforded continual registration. Interestingly, trade marks can remain in force indefinitely provided certain fees are paid and conditions met. Also, lots of countries have treaties with one another, which makes the application process a little easier. However, time, costs, and filing procedures are different and need to be understood before filing in different countries. A thorough assessment of your brand, business, and needs is recommended.

Trade marks (or trademarks) exist so that the goods and services of one entity can be distinguished from another. They are a symbol, a sign, a badge, and/or a mark that identifies a particular quality that is attributed to that good or service. A trade mark can be a name, packaging, a scent, or a jingle, in relation to any product or service.

four functions

Trade marks essentially have four functions:

1. quality indicator

2. badge of origin

3. means of advertising

4. investment vehicle

More information about trade marks and what we can do for you regarding trade mark registration can be found here.

Expression of Ideas

Creative works such as books, music, art, photographs, architecture, and even computer software are protected by copyright. While copyright protects the expression of ideas, it does not protect the ideas or concepts themselves. This means that you can't obtain the exclusive right of protection of a photograph of a dog. Your photograph cannot be copied, however others can take similar pictures of dogs and have their own copyright in their own photograph. It's not an exclusive right for any idea or concept.

Automatic or registrable?

In jurisdictions where the Berne Convention standards are applicable, copyright registration may not be required or even available. However, some territories do have registration systems. In the USA, for example, registration serves to confirm validity, and may assist should legal proceedings be required.

Inventions

Patents and patent law protects inventions. These inventions must display novelty, which means that the invention must never have been made available to the public by any means anywhere in the world, in order to be granted a patent. A patent is a right that is granted for a method or process, a substance, and any device, so long as the patent is innovative. A patent will only be granted if it is useful, new, and inventive.

Patent protection is a very strong exclusive right for the owner to be able to use their invention for a set period of time. Patents are complex in nature and require specialist attention. We recommend conducting an initial search to see if your idea is in fact patentable and then seeking advice from a registered patent attorney. Our patent searchers can assist you with this.

Please contact us if you need any further information regarding patents, or finding a suitable attorney.

Form & Function

Designs are certain functional and aesthetic aspects of the appearance of articles. Design law registration protects the looks, and/or functions of the article. In order to be granted registration of a design, the design must be new and distinctive.

What's covered

Essentially, design protection covers:

• the shape of an article;
• the configuration; 
• pattern and ornamentation; and 
• may relate to only parts of the article, or the article as a whole. 

The protection may also protect features that are not visible to the human eye.

scope

Design registration is quiet limited in scope and you can only protect your designs for a certain number of years. This is unlike trade marks, where registration can be for an indefinite period of time. If you are interested in finding out more about designs, or design protection please contact us. 

The Value of Protection

Intellectual property is the one of your most valuable assets. If you don't take the steps to ensure ownership and protection, you are putting it at risk from the outset.

It is essential that startups protect themselves, as they already face a tough time when setting up. You are creating your own goods and services and trying to gain a share of the marketplace. At this crucial stage, IP is often forgotten. By failing to seek advice about your IP rights early on, you could be undoing all of your hard work before it's even begun, and opening yourself up to legal problems in the future.

Don’t rush your ideas, and be aware of what's needed in all areas of your business. Most importantly, know when you should get legal help to ensure you have adequate protection of your IP and your business. We're here to help.