How to Protect Your Idea, Get a Patent and Trademark
28 Jan 2024Content
Table of Contents
The first step in starting a business is having an idea. It’s important that your idea remains yours and that others don’t profit from it before you even get the chance to.
Of course, an idea is not everything. For your startup to be successful, execution is just as essential. However, protecting your idea must not be overlooked. From copyright and NDAs to getting a patent or trademark, we will discuss everything you need to know about idea protection in this article.
Let’s look into all the options you have for keeping your idea exclusive to your business, their benefits, and how-tos! But first, let’s establish once and for all why we at EB Pearls stress the importance of idea protection.
Why You Need to Protect Your Business Ideas
Legal protection for your startup idea is vital because it safeguards the unique elements that set your business apart. Trademark protection, obtained through entities like IP Australia, ensures that your business name, logo, and other distinctive features are exclusive to you.
This exclusivity is crucial for building brand recognition and trust among consumers.
In essence, legal protection for your startup idea is about ensuring the longevity and success of your business. It minimises the risk of intellectual property disputes, builds a strong foundation for growth, and enhances your standing in the competitive business landscape.
By investing in legal safeguards, you not only protect your brand, but also contribute to the overall sustainability and reputation of your startup.
4 Ways to Protect Your Business Ideas
There are four major ways to ensure that your startup ideas are legally protected
The foundation of copyright is the creative skill and labour of an individual. While copyright does not safeguard the ideas or information themselves, it does safeguard the unique ways in which they have been conveyed. The four most prevalent types of copyright are text, pictures, music, and video.
A content’s owner is granted exclusive economic rights to undertake specific acts with that material through copyright. The right to reproduce and disseminate the content is one example of these rights.
In addition to financial protections, copyright grants people what are formally called moral rights. Australia recognises three moral rights: the right to honesty, the right to proper credit, and the right to be free from defamation of character.
How to Get Copyright
Copyright registration is not necessary in Australia. Copyright in Australia is an automatic safeguard for every creative work the moment it is committed to paper or digital form. The Copyright Act of 1968 guarantees unrestricted and complimentary copyright protection.
An innovation, whether it’s a product or a process, is considered an invention when it gives a novel technical solution to an existing problem or a more generalised method of accomplishing something.
A patent grants the exclusive right to use the patented invention. The technical details of an invention must be made public in a patent application for it to be granted a patent.
In theory, the owner of a patent has the exclusive authority to forbid anybody else from making money off of the patented innovation. What this means is that no one else can make, use, distribute, import, or sell the patented innovation without the owner of the patent having given their permission.
How to Get a Patent
These are all the steps for securing a patent in Australia, according to the IP Australia website:
- Understand what can be patented.
- Keep your invention confidential or stay within the 12-month grace period.
- Decide if a provisional patent application is suitable.
- Choose the type of application and grasp the associated costs and annual fees.
- Determine the rightful owner, whether it’s the inventor(s), someone with legal rights, or an employer.
- Search for Existing Patents:
- Make sure your invention is original by searching online and in patent databases.
- Collect Required Documents:
- Gather data on ownership details and inventor details.
- Give the name and number of an agent in Australia or New Zealand.
- Prepare a detailed specification following guidelines.
- File Your Application:
- Create an online account and fill out the application form.
- Upload your specification.
- Optionally request examination, expedited examination, or claim priority.
- The Australian patent database publishes your application.
- When an innovation is made public, any attempts to keep it secret are null and void.
- Ask for a Review:
- Request examination within five years of filing, with an optional expedited examination.
- Respond to Issues:
- Address any issues raised during the examination within 12 months.
- Receive the outcome through your online services inbox.
- If accepted, your patent is published for opposition.
- If unopposed, the patent is granted for up to 20 years (standard) or 25 years (pharmaceutical).
- Regular renewal fees are required, and legal action can be taken for infringements post-publication.
Risks to Consider
Making common mistakes during the patent application process can have serious repercussions. One frequent error is prematurely publicizing or selling an invention before obtaining patent protection, leaving it susceptible to theft and rendering it unpatentable after 12 months of public disclosure.
Another critical misstep is insufficient detail in patent applications, where a lack of thorough specifications can lead to application failure or complications during infringement cases.
Neglecting a prior art search, which compares your invention to existing ones, is another error that can result in application rejection.
Lastly, failing to seek advice from an Intellectual Property (IP) expert, such as a lawyer, is a significant oversight. Consulting with an IP lawyer increases the likelihood of a successful application and streamlines the process, making it more time-efficient.
In legal contexts, a trademark identifies any distinctive sign, expression, term, or symbol used to distinguish one thing from another. Both a registered and unregistered trademark serve to distinguish a product as belonging to a certain business and acknowledge that business as the owner of the brand.
Trademarks, which can or cannot be registered, are often thought of as intellectual property.
How to Trademark an Idea
Let’s look at the step-by-step process to get a registered mark in Australia:
- Preliminary Trademark Search:
- Conduct a comprehensive search to ensure the uniqueness of your proposed trademark.
- Check the trademark register for potential conflicts and existing trademarks.
- Identify the Relevant Class:
- Categorize your trademark based on the class of goods or services it represents.
- Create an IP Australia Account:
- Visit IP Australia’s website and set up an account on their online portal.
- Complete the Application Form:
- Fill out the trademark application form with details including the trademark, owner information, and applicable class.
- Payment of Trademark Registration Fee:
- Pay the required trademark registration fee, which varies based on factors like the number of classes and filing method.
- Submission of Application:
- Submit the completed application through IP Australia’s online portal.
- Examination Process:
- The trademark application is reviewed by IP Australia to make sure it follows all the rules and doesn’t clash with any other trademarks.
- Resolve All Office Actions:
- Resolve any office actions that may come up while the examination is underway.
- Publication and Initial Period:
- If the trademark is granted, it is published in the Official Journal of Trade Marks.
- Others have the opportunity to challenge the registration within this initial period if they encounter any conflicts.
- Final Registration:
- Trademark registration occurs when all requirements are satisfied and no oppositions are lodged.
- A certificate of registration is issued.
The establishment of a confidential relationship can be formalised by a legally binding contract known as a non-disclosure agreement (NDA). By signing this agreement, you guarantee that no third party will have access to any personally identifiable information that you may collect.
Companies often use non-disclosure agreements while negotiating with other companies. They make it possible for the parties to exchange confidential information on matters such as goods and services without worrying that it might fall into the wrong hands.
Frequently Asked Questions
When Do You Use The ® and ™ Symbols for Your Trademark?
Use “™” for unregistered trademarks to indicate common-law rights. “®” is reserved for registered trademarks, signifying official registration with the relevant authorities.
How Expensive is a Patent?
In Australia, a provisional patent can be registered for at least $110 and complete protection can cost several thousand dollars; the process takes at least six months.
What Constitutes a Trademark Infringement?
When someone else uses a mark that is confusingly similar to an established trademark or could cause injury to the owner’s rights to their brand, it is considered trademark infringement. It involves the unauthorised use of a protected trademark, potentially leading to legal consequences.
How Will You Protect Your Idea?
When deciding how to safeguard company ideas effectively, it’s important to weigh the pros and downsides of copyright, patent, trademark, and non-disclosure agreements. Think about what makes your intellectual property special and what you hope to achieve.
Once your business idea is protected and ready to take off, contact us for your mobile app, web app, or staff augmentation needs.
Start your app development journey now
“We’re very happy with the results of EB Pearls’ work. Since its launch, the app has had over 7,000 downloads, with around 6,000 users completing the signup process in the first 6 weeks. ”
— Founder at Intro Dating