Intellectual Property FAQs

Q. What is intellectual property?

A. Intellectual property or "IP" as it is commonly referred to represents the property of your mind or intellect. In business terms it is your proprietary knowledge arising from your mental efforts.

Q. What are the types of Intellectual Property?

A. Intellectual Property are broadly divided into the following categories

• patents for innovative, new or improved products or processes;
• trade marks in which letters, words, phrases, sounds, smells, shapes, logos, pictures, aspects of packaging or a combination of any of these distinguish the goods and/or services of one business from those of another;
• designs of the shape or appearance of manufactured goods;
• copyright in original expressions of material in literary, artistic, dramatic or musical works, films, broadcasts, multimedia and computer programs;
• circuit layout rights for the three-dimensional configuration of electronic circuits in integrated circuit products or layout designs;
• plant breeder's rights for new plant varieties; and
• confidentiality/trade secrets including know-how and other confidential or proprietary information.

Q. Does creation of IP mean you own the rights to it?

A. Generally there is no automatic protection of your rights. You must take formal steps to register your IP and obtain the legal rights of ownership. Failing which, you will have to rely on common law to prove your ownership and prior use which can prove a costly and painful experience.

Q. How should you protect intellectual property?

A. You should take steps to register your IP rights with the IP Australia and consult a lawyer if you have any doubts whether your idea can be protected. You should not talk about or make it public too soon or you may lose the legal right to exclusive use of your IP.

Q. Does registration of your IP rights in Australia give you international protection?

A. Registering your IP rights in Australia does not give you international protection. You will have to register it in each individual country in which you intend to sell your product or idea.

Q. Is your IP suitably protected?

A. Different IP rights vary in the protection they provide. Often, more than one type may be necessary to fully protect your creation

Q. What is the value of IP to my business?

A. A clever business uses it's IP to market itself and its' products or services. It will help identify and make your business stand out from the competition.

Q. What strategies can I use to protect my IP?

A. You have to be diligent in safeguarding and protecting the secrecy of your ideas. This can be done by way of confidentially agreements and maintaining your trade secrets.

Q. What should I do to protect my brand as my business is increasing annually and it won’t be long before it is instantly recognisable?

A. Every business person or owner or company involved in the sale or marketing of goods and/or services should have a brand management strategy which should be totally comprehensive to ensure some level of real protection. One of the best ways of doing this is to closely align the business or company name and/or domain name and/or copyright of a slogan and to register a trademark to ensure the exclusive use of that name. Exclusivity is the key to your identify and therefore maintaining your market share.

Q. I have been running a business for a number of years and as part of my strategy I obtained a domain name but I have been recently contacted by solicitors acting for another party who indicate that I have infringed their trademark. What should I do?

A. Just because you have been operating a business for a number of years it does not necessarily mean that you have exclusive right to use that name. Obviously their client has a registered trademark for that name which provides them with exclusive rights to use the name in their area of business activity. Just because a domain name is available it does not mean that you cannot infringe somebody else’s trademark. Even where this arises inadvertently as appears to be the case here it seems that you are infringing their trademark and obviously they are prepared to take action against you which would prove extremely expensive if you do not retain a lawyer early on to assist you with this matter.

Q. What happens if a business is already operating under a particular name and has a corresponding domain name?

A. First you should consider whether or not you really need this name and if you require exclusivity you trademark it.

Q. Is it easy to register a trademark in Australia?

A. No. You do not know what you are doing and you will not know what outcome you have achieved without seeking expert guidance and assistance. This area of the law is rather complicated and the services of a competent solicitor should be engaged for accurate guidance and assistance. It is of note that the Trademark Act 1995 provides broad grounds for a change in registration so that genuine competitors are not disadvantaged by registration of a mark which they may honestly need to use in the course of their trade or business.

Q. We run an internet service provider company and have recently noticed that someone is stealing our content and placing it on their website without amendment. We want to stop this as it is impacting our business as it appears the two may be associated by anyone viewing the content. Can you assist us?