Intellectual property (IP) represents the property or creations of your mind or intellect.

If you develop a new product, service, process or idea it belongs to you and is considered your IP. You must formally register your IP to ensure legal ownership.

Tip

IP protection in Australia does not extend to other countries. You must apply for international protection separately and in each country where you want your IP to be protected.

Top 5 IP tips for new businesses

Start early

Include IP considerations when developing your business plan.

Consider trademarks

A trademark and a business name are two different things. Registering a business name doesn’t give you exclusive rights over that name.

Take responsibility

It is up to you to manage and renew your IP registration.

Avoid publicising your idea

You may not be able to get a patent if you have discussed, demonstrated or sold your creation. If you need to discuss your idea with other people make sure they sign a confidentiality agreement.

IP is for everyone

IP protection is available to anyone, regardless of business size.

Types of IP protection

There are seven types of IP protection including plant breeder’s rights, circuit layout rights and confidentiality/trade secrets. Most businesses use these four - patents, trademarks, designs and copyright.

Specific information for each protection is available through IP Australia.

Patents

A patent is a right granted for any device, substance, method or process which is:

  • new
  • innovative, and
  • useful

A patent gives the owner the exclusive right to the invention for a period of time and can be legally enforced.

You should not disclose or promote your idea to anyone without first applying for a patent as this may affect your chances of having it registered.

Trademarks

A trademark is used to distinguish the goods and services of one business from those of another.

A trademark can be a letter, number, word, phrase, sound, smell, shape, logo, picture and/or an aspect of packaging.

It is not compulsory to register a trademark, however it is important to consider if you want to retain exclusive rights to its use.

Registering a business, company or domain name is not the same as trademarking it and may not provide you with exclusive rights or ownership of the name.

Designs

A design refers to the features of shape, configuration, pattern or ornamentation which give a product a unique appearance and must be new and distinctive in order to be registered.

A registered design allows the owner to use it for commercial purposes, to licence or sell it.

Registered designs tend to relate to form whilst patents relate to function.

Copyright

Copyright is a free and automatic legal right given to the authors or creators of original works. You can copyright works but not ideas.

Copyright is commonly applied to:

  • music
  • sound recordings
  • art
  • books
  • films
  • online and offline publications

Computer programs and databases may also be copyright protected.

In Australia, copyright is overseen by the Department of Infrastructure, Transport, Regional Development and Communications. For more information on copyright visit the Australian Copyright Council.

Protecting your intellectual property

Register your IP

You may need to consider more than one type of IP protection depending on your creation.

Keep your idea a secret

Do not promote or disclose your idea to other people.

If you need to involve other people ensure they sign a confidentiality or non-disclosure agreement.

Have the agreement signed, dated and witnessed.

Demonstrate that the idea is yours

Keep all records and documentation of your idea.

Do not use someone else’s IP

Protection may not be available if your idea is similar to one that is already covered.

Search data on existing patents, trademarks and designs.

Include IP clauses in contracts

When employees create original works as part of their job the copyright will usually belong to the employer. It is good practice to include clauses regarding IP and confidentiality in employment contracts.

If you engage contractors in your business, make sure their contract outlines an agreement as to how copyright will be assigned.

For example, if you engage a photographer to take photos for use on your website, it is important to confirm who will retain copyright ownership. If ownership remains with the photographer the images can be used or sold to other people.

More information