Creative Types: Know Your Rights

Whether you are an artist, designer, inventor, or just all-round creative genius, your ideas are your most important asset, and you need to make sure they are being looked after.

Because no matter what stage you are at in your creative career, it’s never too soon to break out of the starving artist cliché and get serious about protecting your intellectual property.

We understand this probably gets pushed to the bottom of your to-do-list, particularly when you’re in the middle of a creative streak, but you shouldn’t put it off forever.  After all, you don’t want to be left with nothing to show for all of your hard work, just because you didn’t have the proper legal protections in place.

Even if you’re trying to build relationships with investors or developers, getting them signed up on confidentiality agreements can be the difference between success and having your idea stolen.  Before releasing your ideas into the public domain you should consider whether you need to register a patent or design.  That way you will have secure property rights to enforce if someone tries to rip you off.

Patents vs Designs – what’s the difference?

Patents are property rights for various types of inventions such as devices, substances, methods or processes.  Applying for a patent can be a complicated process, but once granted you’ll have the exclusive right to use, licence or sell the invention for the duration of the patent, which can be for as long as 25 years.

For example, do you remember when Nespresso coffee-pod machines first became available? Nespresso had a patent which allowed them to dominate the market for years, but upon expiry a number of cheaper imitations were released and Nespresso prices dropped accordingly. This illustrates how registering a patent can give you a significant advantage over your competitors for a number of years.

Designs, on the other hand, are the appearance of an item – the shape, pattern or decorations that make an item unique and distinctive. Think of the Eames lounge and ottoman, or Ray Ban wayfarers. Like patents, once your design is registered you’ll have the exclusive right to commercially exploit it for the duration (initially for a 5 year term with the option to renew).

First in, best dressed

All right, so you probably need a patent or design.  But what’s the rush?  The Australian patent and design registration systems operate from a “first in, best dressed” presumption.  Certain registrations can be defeated with evidence of prior use, but this doesn’t get you your exclusive patent or design rights, it may merely just take away someone else’s.  Once you have used your product/system in commerce in the public domain, it is night on impossible to get a patent or design registered after that.  Once it is no longer a secret, it is generally no longer registrable.

You are entitled to discuss your ideas with parties for the purposes of considering business arrangements without it necessarily jeopardising your right to register a patent or design thereafter.  However, if you’re meeting with anyone to discuss your ideas, you risk having them stolen and exploited.  For individuals or small businesses that are dealing with larger corporations, it’s likely that the party with more bargaining power will try to take advantage of the little guy.  But if you’ve registered your rights before entering into any negotiations, you’re putting them on notice that you know where you stand and need to be taken seriously.  This should make others think twice before trying anything on.

The moral of the story is… if you’ve got a great idea, register it – or live to regret it.

The application process

By their very nature, patents and designs are more technical and nuanced than other types of intellectual property, and getting them registered isn’t a straightforward process. You’ll need to jump through a number of hoops with IP Australia, which can be a time-consuming and costly process. In addition to legal advice, you might also need to engage experts who understand the technical issues involved. For those reasons you’re better off getting proper advice from the start, so that you know what you are in for and have a realistic understanding of your prospects of success.

To find out more about the nitty gritty application process, check out IP Australia’s website at http://www.ipaustralia.gov.au/

If you care about it, Sajenise it!

Now we’ve told you what you need to know, you don’t have any more excuses. Give us a call so we can help sort out your intellectual property rights, and make sure they are backed up by solid confidentiality agreements, before you go putting yourself out there. Don’t say the Honey Badger didn’t warn you.


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