Can You Trade Mark a Process?
Emily Young
If you have designed an innovative process, you may be wondering if you can trade mark it to gain legal protection. However, a trade mark is unlikely to be the best option for protection for your process. To help you better understand your intellectual property (IP) options, this article will take you through what a trade mark is, how you can apply it to your process and the other options available for protecting your process.
What Is a Trade Mark?
A trade mark is one type of IP protection. A trade mark allows you to distinguish elements of your brand from your competitors, serving as both legal protection and a valuable marketing tool that increases the value of your business assets and help to further your brand reputation.
Trade marks can take a variety of forms, including a:
- word;
- phrase;
- letter;
- logo;
- number;
- scent;
- song;
- packaging shape; or
- any combination of the above.
As seen in the example above, trade marks are varied. Despite this, they only extend to the branding elements of your business.
Can You Trade Mark a Process?
A process refers to a series of actions or steps taken to achieve a particular end. Given the definition of a trade mark, it is not possible to trade mark a process. Instead, you will only be able to protect the elements of your brand associated with the process itself.
If you are working to protect your process, you should consider several other IP options, with the most appropriate depending on the type of process you are looking to protect.
For example, copyright is one other form of IP. There is no registration system for copyright in Australia. Instead, you will automatically receive copyright if it applies to you. However, copyright extends only to creative work, which may not be appropriate for your needs.
Alternatively, a patent may be a good option for you because it protects the mechanics of an invention and the overall concept of a process. However, it is essential to note that the standard to obtain a patent is high and will require your process to be sufficiently original to meet the requirements.
What Is a Patent?
A patent is a legally enforceable right that gives inventions legal protection. This protection extends to processes. Patent protection allows you to have exclusive commercial rights over your process. These exclusive rights include the right to:
- prevent others from using or manufacturing your invention without your consent; and
- obtain a license to have your invention manufactured.
To meet the high standard for a patent, your process must be new, innovative and have an inventive step. An ‘inventive step’ means that your process or invention must not be obvious to those with knowledge and experience in your field, therefore limiting patent protection only to exceptional circumstances.
In Australia, patents last for 20 years (or 25 years for pharmaceutical inventions). There are also several fees associated with patents, such as the application fees, voluntary amendments and renewal fees, which are payable annually if you wish to maintain your patent protection.
While the high fees and difficult filing process may put you off filing a patent, the protection granted makes the process worth it.
Key Takeaways
If you have designed an innovative process, you are likely to want to protect it. While a trade mark is one great way to protect your IP, it is unlikely to be the best legal protection for your trade mark. Instead, you may wish to consider filing a patent. Patent protection will allow you to have exclusive commercial rights over your process. These exclusive rights include the right to:
- prevent others from using or manufacturing your invention without your consent; and
- obtain a license to have your invention manufactured.
If you are seeking assistance with filing an IP, get in touch with our experienced IP lawyers. You can contact them on 1300 657 423 or by filling out the form on this page.
Frequently Asked Questions
A process refers to a series of actions or steps taken to achieve a particular end. Given the definition of a trade mark, it is not possible to trade mark a process. Instead, you will only be able to protect the elements of your brand associated with the process and not the process itself.
A patent is one form of intellectual property (IP) that grants you protection over your invention. It is a legally enforceable right that allows you to prevent others from using or manufacturing your invention without your consent. Unlike other types of IP, a patent is not granted automatically. This means it is essential to apply for a patent if you want to enforce your rights over it and protect your process.