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Intellectual Property Law

The Labyrinth of Intellectual Property Law


Are you a creative person or otherwise involved in the creative industries?

Intellectual property (IP) relates to new creations of the mind. It covers a very broad spectrum of creations including inventions, trade marks, designs, brand names and images, music, film, artwork, photographs or something a person writes, draws, paints or records.

IP is protected by laws primarily relating to patents, copyright, designs and trade marks. These laws grant owners a bundle of exclusive rights to undertake certain activities with or in relation to each class of IP and the owners are entitled to protect their rights against unauthorised use by others.

Because the rights granted are rights to undertake activities on an exclusive basis and to protect their exclusive rights, they are not tangible or physical rights and are generally referred to as intangible property.

The creator of IP is not necessarily the owner or the only owner, and CG Lawyers can ensure that IP ownership is agreed upon through appropriate contractual arrangements between employers, employees, suppliers, distributors and manufacturers.

Contrary to common belief, registering a business, company or domain name does not give you exclusive rights like IP law can. For example if you register a business, company or domain name, you do not automatically have the right to use that name as a trade mark.

IP is a general term that covers a number of areas of law and CG Lawyers takes instructions on most aspects of it. In this respect, our most common areas of practice are copyright, trade marks, design law and law relating to confidentiality and trade secrets.

Are you a writer, a publisher, an artist, a sculptor, a musician, a composer, a website developer, an app creator?


What does copyright protect?

In general copyright protects:

 

  • textual material
  • computer programs
  • compilations of work (e.g. written work or music)
  • artistic works
  • music
  • cinematographic work (film, video or DVD)
  • sound recordings
  • broadcasts
  • published work
  • performance
The following is NOT protected by copyright in Australia:

 

  • ideas, concepts, styles, techniques and pure information
  • names, titles and slogans

Who owns the copyright?

In Australia, copyright protection is free and automatic – from the time a work is first created, recorded or written down. You don’t apply for copyright and there is no system of registering copyright, no forms to fill in or fees to pay.

Whilst the Copyright Act sets out the rules about copyright ownership, people involved in creating or investing in copyright material can reach agreements about who owns the copyright.

There is a clear distinction between the copyright in a work and the ownership of the physical article in which the work exists. This means that the owner of an original painting does not have the right to make copies of it without the permission of the owner of the copyright, i.e. the artist.

The Copyright Act also deals with performers’ rights and the “moral rights” of individual creators.

Are you a marketer or a graphic designer or a start-up?

Trade Marks

A trade mark can be a logo, word, letter, phrase, symbol, name, signature, picture, shape or aspect of packaging, colour, scent or sound. Common law trade marks arise from usage. Unlike copyright, trade mark protection can be enhanced by registration and paying a fee. Registration is particularly useful if you ever need to prove infringement of your trade mark. We can help you with all the necessary documentation. It is also highly recommended that we do a trade mark search report beforehand.

Reasons why a trade mark search is recommended

  • It’s an offence to breach trade mark rights – even if you didn’t mean to. The costs in legal fees and court costs set in motion by other trade mark owners and/or aggrieved competitors can be very high.
  • The results of a search give you comprehensive data on which to base cost-effective trade mark choices.
  • A search will help determine if an existing trade mark – on the Trade Marks Register or as a common law trade mark – is similar to your own.
  • It’s unwise to invest money in marketing or promoting a business, product or brand before you are as certain as you can reasonably be that you have full rights to do so.

We can also assist if you receive any letters or claims alleging that you have breached someone else’s trade mark (and possibly other) rights.

Do you design furniture, jewellery, clothing?

Designs

CG Lawyers can help you find out what a design right is and which designs can and can’t be registered. A registered design can give your organisation a competitive edge and provides you with the legal right to defend your design from unauthorised copying in Australia.

Are you an inventor?

Patents

Patents protect inventions. This includes processes, methods and techniques. But the protection is only granted for a device, substance, method or process if it is new, inventive or of use. CG Lawyers does not provide patent attorney services. However we do accept instructions in patent litigation.

Are you a Small to Medium Enterprise (SME)?

Confidential information

Copyright does not protect ideas or pure information – but if someone uses information or an idea that they get from someone else in confidence they may have breached a duty of confidentiality.

Trade Secrets

A trade secret is different from a trade mark. Unlike trade marks there is no register of trade secrets.

A trade secret is proprietary knowledge and while the common law will give you some protection it is also up to you to protect that knowledge. The Coca-Cola and Kentucky Fried Chicken recipes are two examples of trade secrets. One way you might keep this knowledge out of competitors’ hands is by ensuring that employees sign an employment agreement containing appropriately worded confidentiality clauses. It is also recommended that distributors sign confidentiality agreements.

Confidentiality obligations can be difficult to enforce and need to be prepared by your legal advisor as so many situations are unique, requiring bespoke documentation.

Defamation

This law protects people’s reputations, and concerns the way you speak about or refer to people.

For an initial consultation call CG Lawyers at 1300 614 914 or email us at enquiries@cglawyers.com.au.

IP Law Blog

Useful Links

IP Australia

Search trade marks, designs, patents.

The Copyright Agency

The Copyright Agency helps with collection of fees and distribution of royalties for the re-use of text and images.