As a business owner, you’re no doubt aware that you need to protect your products and services from copycats. The best way to do this is by trademarking the elements that are unique to your business.
In this guide, we break down everything you need to know about trademarks and Intellectual Property protection in Australia and around the world, including registering trademark for product, issuing cease and desist letters, copyright laws and the laws around importing products. We will also explain why a sourcing company can be an important part of the process.
Registering a trademark protects your intellectual property, and it does so in a few different ways.
Some of the benefits of registering a trademark for your product include:
In short, if you want your brand and intellectual property to be unique to your business, you need to protect it by trademarking it.
Registering a trademark is simple but can be time-consuming.
The Australian Government’s IP Australia site has a detailed run down of exactly what to do if you want to register a trademark. This is broken down into five steps:
These five items are outlined in much greater detail on the IP Australia website. It is worth your time to peruse this site thoroughly before making a move.
The complexity of your trademark and the similarity to already registered trademarks can affect the time it takes for approval. IP Australia are currently undergoing a high volume of trademark applications. Keep this in mind when you organise your timelines around trademark approval.
Trademarks aren’t the only way to protect your hard work from being copied. There is also copyright law and patents. The three differ slightly.
Trademarks protect logos, brand names, catchphrases and symbols used to represent your company. Think of Macdonald’s Golden Arches or the blue and red text for K-Mart.
Think of Prada handbags. These bags are very clearly labelled with the Prada logo, which is trademarked. There are lots of cheap imitations and the people making them are putting themselves in line for legal action. However, Prada cannot stop other brands from selling different styles of handbags.
If you research Prada, you’ll see many trademarks registered to the brand.
A patent is used to protect what might broadly be called an invention. If your company develops a new plumbing part that could be sold at Bunnings, you may decide to acquire a patent so nobody else can profit from your ideas and hard work.
Copyright is much the same as a patent but covers less tangible products.
Copyright laws cover products such as:
It is illegal to listen to or watch music and movies without making a payment because of copyright laws.
‘Cease and desist’ is a legal term used to describe a demand made by someone who believes their trademark or copyrighted material is being infringed upon. A cease and desist letter demands that the alleged infringing activity cease immediately and usually includes a threat of legal action if the recipient does not comply.
Cease and desist letters are often sent by lawyers on behalf of their clients, but they can also be sent by the trademark or copyright holder themselves. Cease and desist letters are meant to be taken seriously, as they can lead to legal action if the recipient does not comply.
If you feel you need to send a cease and desist letter, contact your lawyer first. They will be able to ascertain whether you are in the right and take care of the paperwork for you.
There are a few ways to find out if a product is trademarked, either in Australia or somewhere else in the world.
It's essential to do a trademark search before using any new product name, slogan, or logo. This is because you could be unknowingly infringing on someone else's trademark.
As you will have noticed in step 3 of the instructions from IP Australia, you can run a trademark search on their website. This will tell you if the trademark is registered or if there is an application pending.
You can also check the Australian Trade Marks Register, which is a database of all trademarks that have been registered in Australia.
If you're not sure whether a product is trademarked, you can always contact a lawyer or trademark attorney for advice.
There are a few ways to go about searching for international trademarks:
Once you've done a thorough search, you'll have a better understanding of whether or not your proposed product name is already trademarked. If it is, you'll need to choose another name. If not, you can move forward with trademarking your own product name.
Yes, you can import a product that is trademarked in another country. However, you may need to obtain a licence from the trademark holder in order to do so.
The laws around importing products vary from country to country when it comes to trademarks. It's vital to consult with a lawyer who is familiar with the regulations in this area. Failure to obtain the proper licence could result in legal action being taken against you.
As an importer, it is crucial to be aware of intellectual property laws in China. These laws protect intellectual property rights holders from infringement and unauthorised use of their intellectual property.
In theory, China employs the same three IP protection laws, copyright, trademarks, and patents as Australia and many other countries. However, you also must be aware that intellectual property laws in China are not always enforced as consistently or stringently as they are in other countries. This means that there is a greater risk of infringement and unauthorised use of intellectual property in China. As an importer, you should take steps to protect your intellectual property rights before doing business in China.
There are a few things you can do to protect your intellectual property rights in China:
By taking these steps, you can help to protect your intellectual property rights when doing business in China.
A patent-pending is a patent that has been applied for but not yet approved. In complex cases, it can take many months to process a patent, leaving them pending in the meantime. You may want to ensure that your patent is not in conflict with another that is being processed.
Many provisional patents are not made public, so it may not be possible to find all pending patents. If you are worried your trademark might be in conflict with a pending patent, talk it through with your lawyer.
To get you started, here are some methods for finding patents pending that are available to the public.
To find out if a product is patent pending in Australia, you can search for the patent application on the Australian Patent Office's database. The database is searchable by product name, applicant name or patent number. If the product is patent-pending, the database will show the status of the application and the date that it was filed.
If you're wondering whether a product is patent-pending, there are a few ways to find out.
First, you can check the USPTO's website. The United States Patent and Trademark Office (USPTO) is responsible for granting patents in the United States. You can use the USPTO's Patent Applications Search tool to search for published patent applications.
If you know the specific application number, you can also search for it on the USPTO website.
Google also has a specific patent search engine to easily track down existing patents.
Another way to find out if a product is patent-pending is to ask the company that makes the product. Many companies will list this information on their website or on the product packaging.
You can also contact a patent attorney or agent to conduct a search on your behalf. This may be a good option if you're not familiar with searching for patents.
Keep in mind that even if a product is patent-pending, that doesn't necessarily mean it will be granted a patent. The application may be rejected for various reasons.
Along with inventions, logos and intellectual property, trade secrets can also be protected under law.
Under Australian law, a trade secret is defined as information that:
This could include things like customer lists, formulations, recipes, manufacturing processes or marketing strategies.
To protect your trade secrets, you need to take reasonable steps to keep them secret. This might involve measures such as physical security, asking people to sign non-disclosure agreements or limiting access to certain employees.
If someone does unlawfully obtain or disclose your trade secrets, you may be able to take legal action against them.
There are several reasons why you should consider protecting your business under trade secret law:
If you have information that is not known to your competitors, you have a clear advantage over them. This could be anything from a new marketing strategy to a more efficient manufacturing process. By keeping this information secret, you can maintain your competitive edge.
Patents only offer protection for a limited period of time, typically 20 years. Trade secrets, on the other hand, can last indefinitely. That means they can provide a much longer-term competitive advantage for your business.
Obtaining a patent can be a lengthy and costly process. Trade secrets, on the other hand, can be put in place relatively quickly and cheaply. All you need to do is take steps to ensure that your information is kept confidential.
Patents offer a particular form of protection. They prevent others from using, making, or selling your invention. Trade secrets, on the other hand, can be used to protect a much broader range of information.
Patents only offer protection against competitors. Trade secrets, on the other hand, can also be used to protect your information from former employees who might try to use it for their own gain.
Trade secrets can be protected through several different means:
If you have information that gives your business a competitive advantage, you should consider protecting it as a trade secret.
At Epic Sourcing, because we have so many relationships with retailers, manufacturers and suppliers in Australia and China, we’re very familiar with the trademarking process by association. We have a clear understanding of this part of the product development process and are able to connect you with reliable contacts who have experience in this field.
If you are looking to develop a new product or piece of equipment and want it to be exclusive to your brand, your sourcing company can help.
Want to work with an Australian sourcing company that will help you develop and produce something unique? Reach out to our friendly team today.