When to use a patent, a trademark and a design right in Australia

When does a business need to protect its intellectual property?

For Australian exporters, intellectual property (IP) is everything. Domestic IP protection is par for the course for most SMEs, but as soon as you move into international markets you require many more protocols – and they can be difficult to understand, let alone implement.

There are three main ways to protect your IP as an exporter.

  • Patents give you exclusive rights to new ideas or inventions;
  • Trademarks protect your symbols or brand;
  • Designs protect the appearance and configuration of your products.

That's the core breakdown – but, as with all business information, the devil is in the details.

When an Australian business should use a patent

If your product is a unique invention or service, a patent may be necessary to protect it from theft. IP Australia defines patentable products as "a device, substance, method or process", and stipulates that they have to be of use to consumers or businesses, or an example of innovation and inventiveness. 

In short, a product must be useful and unique to qualify for a patent. Exporters can discern if their product or service is patentable by completing a Patent Cooperation Treaty (PCT) application, which is run against the regulations of 151 countries that have signed an international accord. This can be preceded by a provisional application, which is cheaper but doesn't offer full protection of your IP – think of it as a placeholder application.

Standard patents protect your product for 20 years, while innovation patents only last eight years. There is also a pharmaceuticals-specific patent, which has a 25-year protection period. Businesses should secure patents whenever they believe they have a product or service that qualifies – especially if it will eventually go to market.

When an Australian business should use a trademark

Where patents protect your goods or services, trademarks protect your brand. A case study from IP Australia clarifies that securing your domain name is not enough to prevent someone else from using your name or brand – a trademark is the best form of protecting this IP. 

It is more than just the name of your company or a logo – it is the imagery, wording and general aesthetic – everything that makes the brand recognisably yours. Australian businesses should look to secure their trademark when they are beginning their business, although if an existing business has a similar trademark it may be worth reconfiguring your own brand – especially if the preceding trademark has a lot of brand exposure in your target markets.

Trademarks will last for ten years from date of registration, and can be removed if your business fails to utilise it.

When an Australian business should use a design

Operators should use this when the aesthetic or design of a product or brand needs protection. Australians invoke this kind of IP protection under the Designs Act 2003 around 7,000 times every year, with IP Australia noting that it can be for anything from a specific garment design to the structure of a mobile phone or vehicle.

This can be a long process, with a number of independent professionals analysing the worthiness of your design for protection – especially if it will be used in the commercial sphere. 

Some aspects of design do not require this level of protection – for example, artworks come under copyright law automatically. But if you believe any aspect of your business or product aesthetic or structure needs protection, it is time to look into design law. 

Prevent IP theft early in your business cycle

Expanding a business overseas is an exciting prospect, but it is crucial to file the right IP paperwork before you move forward. Advancing before obtaining protection can leave your products vulnerable to emulation or adoption with no legal recourse for you. 

Check the specific laws and protocols for your target markets, and secure IP protection before you sell. The ethos behind IP is the same principle behind Coface's trade credit insurance – prevention is always preferable.