Intellectual property (IP) takes a range of forms. The most appropriate strategy for protecting your rights will depend upon the specific nature of the IP that you have developed.
The core of our practice at IP Flourish is patents and registered plant variety rights. However, we also have extensive experience assisting clients with trade mark and design registration.
IP Flourish is qualified to practice in Australia and New Zealand. For protection in other jurisdictions, we work with trusted associates. The following general comments are provided with this in mind.
Types of Intellectual Property (IP)
Within Australia, there are many different forms of intellectual property (IP). Here are some of the most common types:
Patent protection provides exclusive rights to commercially use an invention covered by the claims of a granted patent, for the term of the patent. Generally, the term of patent protection is 20 years from the filing date.
Among the requirements for valid patent protection is that the subject matter as claimed is novel and involves inventive step. Novelty and inventive step criteria are assessed relative to information that is publicly available anywhere in the world. As such, it is important that confidentiality is maintained until filing of an initial patent application for an invention.
Patent protection is jurisdiction specific, such that a granted patent in a particular jurisdiction (country or region) is required for protection of an invention in that jurisdiction. However, the filing of a first patent application in Australia or New Zealand can provide a priority date that can be used worldwide.
Plant Variety Rights
Most jurisdictions worldwide offer registered protection for plant varieties in the form of ‘plant variety rights’ or ‘plant breeder’s rights’, or similar. The term of registered protection is generally twenty years from filing, or twenty-five years in the case of tree and vine varieties.
In order to be protected by registration, a plant variety must be ‘distinct’ as compared to the most similar existing variety, ‘uniform’ among siblings of a generation, and ‘stable’ when reproduced across generations (‘DUS’ criteria).
In most jurisdictions, an application for protection for plant variety registration must be filed within a set time from first commercialisation of the variety. In Australia (and many other jurisdictions), this deadline is twelve months from local commercial use or four years from commercial use overseas (or six years in the case of tree and vine varieties).
Registered Trade Marks
A registered trade mark in a given jurisdiction provides the exclusive right to use the trade mark as part of branding in that jurisdiction. Trade mark registration is typically renewable indefinitely, in ten-year terms.
Although words and logos are commonly registered as trade marks, it is also possible to obtain trade mark protection for a variety of other elements associated with a brand, including shape, sound, and even smell.
Commercial use of a registered trade mark is generally required to maintain validity. Trade mark owners need to be aware that in Australia, a registered trade mark can be susceptible to removal if not used for a period of three consecutive years after registration.
A registered design provides exclusive commercial rights relating to visual appearance of a product. Registration may be focused on particular parts or elements of a product, although rights are assessed in consideration of the product’s overall appearance.
Both three-dimensional features, such as shape and configuration, and two-dimensional features, such as pattern or ornamentation, can be protected by registered design. There is no requirement that a feature is aesthetically appealing or strongly conspicuous for design registration, although the design elements of the registration must affect the overall appearance of the product.
Unlike patent protection, registered design protection is not adapted for protection of function per se. However, registration of functional features that also affect visual appearance is typically achievable in Australia.
Other Types Of Australian IP
Your business may have IP rights in various other forms, such as:
- Commercial relationships
- Copyright and moral rights
- Website domains
- Confidential information and trade secrets
- IT infrastructure
We Can Help
IP Flourish has access to trusted associates to assist in relation to these and other Australian Intellectual Property law matters outside of our specific practice areas.
Call +617 3177 3365 or book a free consultation.