Tips To Protect Your Business’ Intellectual Property in the Healthcare Industry

George Raptis

• 29 December 2021
• 7 January 2022
• 6 min read

When it comes to protecting your intellectual property in the healthcare industry, you should consider registering a trade mark. A registered trade mark can protect the features of your brand that make it unique, such as your business name or logo. As the owner of a registered trade mark, you obtain the exclusive right to use, licence and sell your mark, meaning no one can use your trade mark without your permission. This article outlines some intellectual property basics to help you decide whether registered trade marks would be beneficial for your business.

Benefits of Trade Mark Protection

As mentioned above, a trade mark registration provides you with the exclusive right to use, licence and sell your mark. This means that your competitors in the healthcare industry cannot copy or misuse your trade mark concerning similar products or services without your permission. For example, if you used the name ‘Johnson & Johnson’ on your product packaging for adhesive strips, you would likely be infringing on Johnson & Johnson’s trade mark rights. As a result, they could legally enforce their intellectual property rights by:

• preventing you from making further infringements by obtaining an injunction; or
• suing you for damages for any loss they suffered due to you infringing on their rights.

In this sense, a registered trade mark can help you:

• differentiate your products and services in the health care industry;
• build your business’ unique and distinguishable reputation; and
• protect your brand from being copied by your competitors.

Trade Mark Registration

You can register a trade mark for a variety of brand elements, including:

• your business or product name;
• your business logo;

• the unique shape of your product; and
• the colour or scent of your product.

For example, the brand Dettol® is a registered trade mark that dates back to 1945. Dettol’s trade mark protects its well-known disinfectants and germicide products.

You should note that Australian law recognises both registered and unregistered trade marks. An unregistered trade mark can exist if your:

• goods and services gain a sufficient reputation in the market; and
• the mark is recognisable to consumers as part of your brand.

In the instance where a trade mark dispute arose, you would have to prove your rights to an unregistered trade mark. On the other hand, a registered trade mark is approved and recognised by IP Australia. If IP Australia approves your application, you enjoy an initial period of ten years of protection under the Trade Marks Act. You can renew the trade mark indefinitely for subsequent ten year periods.

Trade Mark Classes

When you apply for a registered trade mark, you must decide which goods and services you wish your trade mark to protect. Goods and services are classified into 45 different classes. 1-34 are for goods, and 35-45 are for services. For example, if your business manufactures and sells bandages that support muscles, your trade mark application should include the class covering bandage goods.

You should note that a registered trade mark can only protect the goods and services that IP Australia has approved in your application. If you forget to include a certain class in your application once you have submitted it to IP Australia, you run the risk of having to submit a new application at an additional cost. To avoid this, you should familiarise yourself with the relevant classes that can apply to business in the healthcare industry.

You might want to consider class 5 in the trade mark picklist. Class 5 includes the following goods:

• medicines including serotherapeutic medicines and herbal medicines;
• sanitary preparations including medical soaps and personal hygiene products;
• plasters and materials for dressing;
• dietary supplements; and
• fungicides.  

Depending on your business and its goods and services, there may be other classes relevant to your application. For example, class 44 covers healthcare services. To avoid missing out on other classes, you could use the Trade Mark Assist Tool or get in touch with one of our experienced IP lawyers.

Other Intellectual Property Protections

In addition to registering a trade mark, you should consider registering a patent. You should also be aware of automatic copyright protection.

Patents

A registered patent gives you the exclusive right to make, use and sell your innovative device or process, such as a biological invention or computer software. Similar to trade marks, you can apply for a standard patent with IP Australia. If IP Australia approves your application, you can enjoy up to 20 years of protection over your invention. However, for your healthcare invention to qualify for a standard patent, it must:

• be original, meaning your invention is different from existing technology; 
• include an inventive step, meaning it is not an obvious step to include for someone experienced in the healthcare industry; and
• be capable of industrial application.

Copyright

If your business produces original materials such as information sheets, these are likely protected by copyright. Copyright ensures that other people or businesses cannot copy your original material without your permission. Unlike registered trade marks and patents, you do not have to apply for copyright in Australia. Rather, copyright protects your original materials when they are put into material form or published.

Key Takeaways

To protect your intellectual property in the healthcare industry, you should consider registering a trade mark. A registered trade mark can protect the features of your business brand that make it distinguishable from others. If IP Australia approves your trade mark application, you enjoy the exclusive right to use, licence and sell your mark concerning the goods and services in your application. If you need help protecting your intellectual property, contact our experienced IP lawyers on 1300 657 423.

Frequently Asked Questions