What is Intellectual Property?
Intellectual Property: 12 November 2025
“Intellectual Property Rights” (IP) are a legal rights that protect creations of the mind, such as designs, logos, inventions or literary or artistic works. Generally speaking, owners of IP have exclusive control over how their IP is shared, used or reproduced. However, whilst the concept of intellectual property rights applies globally, specific laws, protections, and enforcement mechanisms vary between jurisdictions. There is also often a requirement to register IP before the full benefit of protection is obtained in a jurisdiction.
In Australia, IP can be registered through IP Australia, (with the exception of Copyright, Circuit Layouts and Trade Secrets). When dealing with IP registration, many people choose to use the services of an IP lawyer to help navigate the process and ensure your IP registration is conducted in a manner that provides you with robust protection.
Why Protecting Intellectual Property Matters
Intellectual property may hold significant value. It takes original ideas, effort, time and financial investment to develop new ideas, brands and products, and if someone else gains the benefits of that work, rather than you, it’s hardly fair.
Intellectual property registration gives owners exclusive legal rights to use their creations as they wish, and potentially, to profit from those creations (including by licensing those IP rights to others).
Advantages of Protecting Intellectual Property:
1. Exclusive rights and control – You decide how others use your work. You also can prevent unauthorised copying or exploitation of your IP. For completeness, there can sometimes be limits on exclusivity, for example in relation to jurisdiction or registration, the classes in which protection is applied for and statutory exceptions around prior use or independent creation.
2. Brand recognition & protection – Registered IP builds customer trust and helps differentiate your products or services in the market.
3. Financial benefits – You can use your IP to grow your business, attract investors, or license or sell your IP for profit.
4. Legal security – If legal disputes over IP arise, having previously registered your IP places you in a much stronger position than if you hadn’t registered. It also makes enforcement and legal action easier.
If You Don’t Protect IP:
1. Someone else may register your product or idea – You may have to stop using your own creation or brand, as another party has claimed ownership of it.
2. Others profit from your work – Your designs or ideas could be copied and used by competitors without compensation, reducing your market share.
3. Loss of brand value and reputation – Without IP protection, your invention or brand may be diluted or misrepresented by others, damaging customer trust.
Whilst there may be common law mechanisms to protect
Who Owns Intellectual Property?
A range of different people may own intellectual property. IP may be owned by the original creator(s). It may be owned by the employer of the original creator(s), or it may be purchased from the creator(s) or otherwise assigned by them, and subsequently owned by someone else.
IP can be owned by an individual or by a corporation or trust.
What Types of Intellectual Property Can be Registered?
There are four types of IP you can register with IP Australia. These are:
● Trade Marks
● Design Rights
● Patents
● Plant Breeder’s Rights.
1) Trade marks
Trade marks distinguish your services and products from your competitors. You can trade mark a:
● Word
● Logo
● Phrase
● Sound
● Scent
● Movement; or
● Combination of the above.
The benefits of registering a trade mark include:
● Your trade mark becomes a business asset, which grows in value the more your business becomes a success.
● Your trade mark gives you the exclusive rights to use your trade mark in Australia.
● Your trade mark gives you the legal right to place the “®” symbol next to it.
● You can sell your trade mark, or license it so that others can use it.
● You can more easily enforce your trade mark should there be unauthorised use by others.
Trade mark rights last for an initial period of 10 years, but can be renewed indefinitely, subject to payment of applicable fees.
2) Design Rights
Your product may be visually distinctive, and you may want to protect its design, so that it isn’t copied and used by others.
If you plan to produce this product on a commercial scale, design rights can help to protect its appearance. Design rights protect the visual appearance of a whole product that:
● Has physical and tangible form
● Is manufactured or handmade
● Is produced on a commercial scale.
The benefits of registering and certifying a design include:
● You retain the exclusive right to use your design within Australia, and to authorise other people to use it in Australia
● A design right has a value (which may grow), and can be sold or licensed within Australia
● If you apply for the design right in Australia, you can also apply for design rights overseas, within 6 months of your Australian application
● If someone uses your design without your permission, you can take legal action against them.
Please note that design rights must be certified by IP Australia before they are able to be enforced. This involves an assessment to confirm that your design is capable of and meets the requirements for legal protection under the Designs Act 2003 (Cth). There are also some designs you may not register, and some designs that are not protected under design rights. An experienced Intellectual Property lawyer can help determine whether or not your design can be protected.
Design rights last for an initial period of 5 years, but can be optionally renewed for one further period of 5 years, subject to payment of applicable fees – a maximum period of protection of 10 years. Once expired, you will cease to have exclusive rights in respect of the design.
3) Patents[AP1]
If you have a substance, device, process or method that’s new, useful and inventive, you may be able to apply for and register a patent for it, which protects your IP rights.
Please note, patents usually need to be applied at the earliest possible stage, before commercialisation or other disclose of its specifications. If you think you have a patentable invention, you should seek legal advice and ensure that appropriate non‑disclosure and confidentiality arrangements are put in place in relation to employees, prospective investors and other third parties to avoid any inadvertent disclosure that may become fatal to any later application.
The benefits of patenting an invention are:
● You hold commercial rights to your invention in Australia.
● You can licence someone else to manufacture your invention according to agreed terms, and they can’t steal your idea.
You have the right to take legal action against anyone who tries to use or sell your invention in Australia without your permission.
Like designs, patents are applied for, and then later assessed by IP Australia. The life of a patent is usually 20 years, although can be up to 25 years for pharmaceutical patents. During a patent’s lifetime, you will have exclusive rights to exploit the patent.
4) Plant Breeder’s Rights
For those who develop new varieties of plants, algae and fungi, Plant Breeder’s Rights (PBR) give you the exclusive commercial rights over your unique variety. To be eligible for PBR, the plant must be:
● A product of a selective breeding process
● New or recently exploited, and
● Distinct, uniform and stable.
With Plant Breeder’s Rights, you have exclusive commercial rights to:
● Propagate or reproduce the plant and plant material for commercial purposes, or license its propagation
● Sell the plant material or license its sale
● Import and export the plant material
● Sell the PBR to another party.
How Can You Protect Your Intellectual Property?
When starting a business or developing a new idea, it’s important to attend to intellectual property concerns. You need to firstly:
● Identify that something falls under the IP umbrella, and confirm the idea doesn’t already exist. If the idea already exists, you may be infringing on existing IP owned by others, which can result in legal consequences. An experienced IP lawyer can assist with conducting clearance searches to help assess any such risk, and to determine and advise on whether your idea is indeed capable of IP protection.
● Protect the IP by registering it early. You register IP through IP Australia, the Australian Government agency that administers intellectual property rights. IP commonly registered as part of establishing a new business include business name, trade mark, logo, product designs, inventions and creative materials like software, branding, and written content.
Does IP Australia Register All IP Types?
Trade Secrets, Circuit Layouts and Copyright are types of IP that aren’t administered by IP Australia. Copyright and Circuit Layout Protection are free and automatic in Australia, and those rights are administered by the Attorney General’s Department. Trade Secrets are protected with confidentiality and secrecy agreements, rather than needing to be registered with the IP office.
Do You Need to Hire an Intellectual Property Lawyer?
Consulting an IP lawyer early can help you avoid costly mistakes — like infringing on someone else’s trademark or missing protection for your own intellectual property.
What are the Advantages of Using an IP Lawyer?
Hiring an IP lawyer offers several advantages:
● They identify what IP you actually own and what can be legally protected.
● They conduct searches to make sure your brand, invention, or design doesn’t already exist and to advice on any risks in proceeding with an application, both in relation to pre‑existing IP and possible issues with meeting the requirements for registration.
● They can handle the registration process for you, and help ensure your application is complete, accurate, and more likely to succeed—particularly for complex IP such as patents or international trademarks.
● They prepare legally sound applications and respond to objections or oppositions from IP Australia.
● They can draft licensing or assignment agreements to clarify ownership and usage rights.
● They provide strategic advice on protecting your IP in Australia and internationally.
● They can send cease and desist letters on your behalf to stop others from infringing on your intellectual property.
● They can represent you in court to enforce your rights or defend against infringement claims.
● They can work with you to acquire or sell IP.
IP Registration Timeframes
Timeframes apply to the granting of intellectual property rights in Australia, and these should be considered when you’re planning to launch a design, logo, invention etc. Keeping your idea under wraps while you wait for registration to be formally granted can be difficult, but it is essential.
What if Someone Uses My IP While My Registration is Pending?
This is a common concern, and it can occur. Your rights in this situation will depend on the type of IP you’ve applied for. The general rule is that, with the exception of copyright, you don’t have enforceable legal rights against others until your IP is officially registered or certified.
Does this mean you have no protection? Not necessarily. Applying for registration gives you a priority date (the date from which your rights will be deemed to have started, if/when your IP becomes registered). The priority date is usually the date on which the application was filed, but can sometimes be earlier if you have recently filed an equivalent application in an overseas jurisdiction.
Though this doesn’t immediately give you the right to stop others from using the IP, once you’re officially granted the IP rights over your trade mark, patent, or design, protection is effectively backdated to the priority date. This means you may be able to act against infringers whose use began after your priority date. Of course, you’re best to consult with a lawyer in this situation.
With regards to copyright, as it exists automatically upon creation of your IP, you can enforce your right against infringers immediately.
If you find yourself in this situation:
● Retain evidence of your filing date, use and communications.
● Notify the infringer that you’ve already applied for registration of the IP.
● Seek advice from an experienced IP lawyer. They can counsel you on interim steps and help you ensure that your rights, once registration is granted, are protected.
What if my IP Rights are Infringed Upon?
The best advice is to seek legal support if someone uses your IP without permission. A lawyer can draft a cease and desist letter, which will detail the alleged infringement, and demand that the infringing activity stop immediately. The letter may also suggest other remedies to resolve the matter without going to court, such as requesting compensation.
If the letter doesn’t resolve the issue, legal action can be taken through the Federal Court of Australia or Federal Circuit and Family Court to seek remedies such as injunctions, damages, or account of profits. In some cases, alternative dispute resolution (like mediation) may first be used. Your lawyer can represent you in these matters, so that you may not need to attend court yourself.
How Long After an Intellectual Property Violation Can You Take Legal Action?
In most cases, you can take action within six years from the date of the infringement. However, it’s best to act as soon as possible, as ongoing use can complicate your claim and make it harder to enforce your rights effectively.
Do Intellectual Property Laws Apply The World Over?
The overall concept of intellectual property is recognised globally, however there are differences between nations and regions when it comes to what IP is protected, the length of time it’s protected for, and how the IP law is enforced. Baseline agreements exist internationally, with most countries following treaties like the Paris Convention (for patents and trademarks), the Berne Convention (for copyright), and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. However, you may still be required to make (or have made) an application in each jurisdiction (and obtained registration) before IP rights can be enforced. An experienced IP lawyer can assist with navigating this process, and making foreign applications pursuant to foreign conventions or directly in a jurisdiction.
Individual countries decide how the international IP standards are applied in their jurisdiction. For example, some countries may allow certain items to be patented, whereas other countries may not recognise the same patentable subject matter. The duration of copyright may differ between countries, and Indigenous and cultural IP and traditional knowledge may not receive formal recognition in some countries, whereas it may in others.
In addition, the enforcement of IP law differs between countries, with some jurisdictions using special IP courts, and other countries handling IP legal matters in general courts or through administrative bodies.
Intellectual Property Legal Support - Aitken Partners
For legal support with all matters relating to Intellectual Property,contact Aitken Partners. We specialise in copyright, trademarks, patents, designs, and more. We can assist with identifying, protecting and commercialising IP, as well as litigating IP infringements both within and outside of Australia. We also support the process of IP acquisition.