Trade fairs are a useful way of advertising your products and attracting customers. However, steps ought to be taken to ensure that adequate controls are put in place to protect your intellectual property (IP). Failure to exercise caution can compromise your IP rights.
Types of IP protection
Below is a brief overview of the different types of IP in Australia that could be compromised if caution is not exercised when exhibiting at a trade fair.
Trade marks
Generally, a registered trade mark grants the owner the exclusive right to use that trade mark in Australia. Whilst our trade mark system gives protection to those who first use a trade mark, as distinct from those who first register a trade mark, it is recommended to file an application to register a trade mark before a product is publicly exhibited.
Notwithstanding the legal position, if a competitor filed first, it can be very costly for a prior user to assert their rights.
It is also considered good business practice to conduct trade mark searches to ensure that you are not infringing anyone else's trade marks at the trade fair.
Registered designs
Design registration protects the overall appearance or shape of objects but not their functions. Protection can be sought for designs that are applied to manufactured or hand-made products.
Designs must be new and distinctive if they are to be registered. If you disclose the design to the public, such as exhibiting at a trade fair, before you have applied for registration you may lose the right to register the design as it will no longer be considered "new". Therefore caution should be exercised in displaying your products at trade fairs before filing a design registration if protection over visual features of a product are important.
Patents
Patents protect novel inventions. The novelty of a patent can be lost if details of the patent are disclosed to the public before it is filed. However, there may be a grace period available if public disclosure occurs, as long as a complete application is filed within 12 months of the disclosure.
Standard patents provide protection for 20 years but innovation patents, whilst they may be procedurally easier to obtain, only last for eight years.
What you can do before a trade fair
- Consider applying to register any trade marks you may have, including names or logos, well in advance of a trade fair in order to protect your brand and to provide more certainty that you are not infringing anyone else's trade mark.
- Consider registering visual features of your product as designs.
- Consider applying for a provisional patent before a trade fair, otherwise, you may invalidate your claim to a patent if you disclose your idea to the public as this may result in the invention losing its novelty.
The Hall & Wilcox
Intellectual Property team has extensive experience advising clients on IP protection and enforcement, particularly in relation to trade marks, copyright, designs, commercialisation and licensing.
For further information, please contact: