Intellectual Property
Protect your IP in Australia
If you are intending to do business in Australia, protecting your brand before you start is critical. Protecting your intellectual property ensures that your market position is safeguarded.
This needs to be considered as part of your overall market entry strategy, the product or service and how you intend to operate such as whether it is direct-to-market or via a local partner. IP is linked to your legal and tax considerations.
TRADE MARKS
IP Australia is the Australian Government agency that administers intellectual property (IP) rights and legislation relating to patents, trade marks, designs and plant breeder's rights.
A trade mark is a right that is granted for a letter, number, word, phrase, sound, smell, shape, logo, picture and/or aspect of packaging or any combination. A registered trade mark is legally enforceable and gives you exclusive rights to commercially use, licence or sell it for the goods and services that it is registered under.
To register a trade market with IP Australia;
- Standard IP Australia application fee is $250 (minimum).
- Takes at least 7 months to register.
- Lasts up to 10 years before renewal.
A common misconception is that the act of incorporating or registering a business or company name in Australia in and of itself grants you proprietary rights. Whilst it is true that other entities cannot register the exact same company name, they can register similar names which could cause confusion. Additionally, trading names (esp. abbreviations), brand and product names and similar marketing components are not protected by the act of company name registration.
Registering a business, company or domain name does not give you any IP proprietary rights. Only a trade mark can provide that kind of protection.
If you register a business, company or domain name, you do not automatically have the right to use that name as a trademark, especially if there is an existing or pending trade mark registered. However, if you have a registered trade mark, you can take legal action for infringing your trade mark if the business name owner uses it for goods or services similar to those covered by your trade mark registration.
Only the registration of a trade mark grants you exclusive use of that mark (word, name, logo etc) throughout the Commonwealth of Australia.
World Intellectual Property Organization (WIPO)
In addition to applying for a trade mark in the Australian territory for your business name, brand names and trading names (or other IP assets capable of being trademarked), the granting of a trademark by IP Australia can also then be extended to other countries by applying via WIPO using the international Madrid Protocol (MP) agreement which can result in an easier and more cost effective process to obtain rights in other countries. Conversely, if you already have trademarks in place in other territories, you may find it as easy or easier to extend those rights to Australia if there is a signatory to the MP. s an appropriate international agreement covering both the origin country and Australia.
PATENTS
IP Australia also grants and administers patents for the Commonwealth of Australia.
A patent is a right granted for a device, substance, method or process that you have invented that is new, inventive and useful when compared with what is already known.
Patents can be granted in Australia not only for traditional inventions such as appliances and mechanical devices but also for computer-related inventions, business methods and processes, biological inventions, micro-organisms and other biological materials (but not human beings or the biological processes for their creation).
Term of the patent from the date of application;
- An Australian standard lasts for up to 20 years.
- An innovation patent only lasts for up to 8 years.
- Pharmaceutical patents can last up to 25 years.
You will be required to pay annual maintenance fees on your patent/patent application otherwise it will lapse and you will not be able to enforce your patent.
Applying for patents can be a time-consuming, costly and complex process. Initial IP searches should be done and professional advice is advised for initiating and completing the application process.