Intellectual Property

IP refers to the creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce. This category of property includes patents, trade marks, copyrights, and trade secrets. These intangible assets are often the result of human creativity and innovation and, therefore, worthy of legal protection.

In Australia, IP rights are protected by federal legislation and the common law. Australia is also a signatory to the World Trade Organisation Agreement on Trade-related aspects of Intellectual Property Rights, which sets minimum standards for IP protection and enforcement.

IP can be classified into several distinct categories, each with its specific characteristics and legal protections:

• Patents ® grant inventors exclusive rights to their inventions, preventing others from making, using, or selling the patented invention without permission.
• Copyrights © protect original works of authorship, such as literary, dramatic, musical, and artistic works, giving creators exclusive rights to their works.
• Trade marks ™ are used to protect symbols, names, and slogans that distinguish goods and services in the marketplace. They offer valuable brand protection and help consumers recognise and differentiate products or services.
• Trade secrets encompass confidential business information, such as formulas, practices, processes, designs, instruments, patterns, or compilations of information that provide a business with a competitive advantage.

Failing to protect IP can expose creators and businesses to various risks and challenges. These include:

• Unauthorised use and exploitation – where your IP can be vulnerable to unauthorised use, reproduction, or exploitation by third parties, leading to financial losses and reputational damage.
• Erosion of competitive advantage – without safeguarding trade secrets, proprietary technologies, or distinctive branding elements, businesses may lose their competitive edge in the market.
• Legal disputes and litigation – inadequate protection of IP can result in legal conflicts, such as infringement claims, which can be complex, time-consuming and financially draining for individuals and businesses.

Utilising contracts and agreements is vital for safeguarding your IP assets, particularly where partnerships, collaborations, or employment relationships are involved. Examples of these contracts and agreements include:

• Non-Disclosure Agreements – also known as NDA’s or Confidentiality Agreements, these are binding contractual agreements between two or more parties, where the primary objective is to create obligations on one or more parties not to disclose confidential or sensitive information which may be exchanged between parties.
• Licensing Agreements – these are formal agreements between two or more parties where the owner of the IP (the licensor) grants another party (the licensee), without ownership, authorisation to use their IP in return for a fee.

A trade mark can be filed in 45 different classes, which cover different products or services. These include everything from clothing and computer software to restaurants and real estate services. It usually takes around 8 months to be registered with IP Australia.

Step 1 – Once an application is filed with IP Australia, IP Australia will then examine your IP to determine if it’s distinctive enough to be registered, and whether or not there are any similar trade marks to your IP that have been registered.

Step 2 – If IP Australia determines that there are no similar registered trade marks, your application will proceed to the next stage: the objection stage. If someone believes that your application has an impact on their trade mark, they can oppose your application by filing a notice of opposition and a statement of grounds and particulars.

Step 3 – If no notice of opposition is filed, then your application will be accepted by IP Australia and advertised in the Trade Marks Journal for two months to allow anyone who may have a claim to your trade mark to lodge an application. If no opposition is received, your trade mark will proceed to registration and your IP will remain protected for ten years, after which you may renew your registration.