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Copyright and Trade Mark Lawyers – Using the right “fence”

Intellectual Property is a valuable asset and may loosely be described as “property of the mind”. Using the right copyright, patent and trade mark lawyer can help to build the right “fence” to protect it.

Intellectual Property is a valuable asset and may loosely be described as “property of the mind” where its owner has the same type of rights as would an owner of land – for example, it may be bought or sold and has an intrinsic value. It includes areas such as copyright law, patent law, trade mark law, and the law relating to the protection of designs.

Intellectual Property comes in a number of forms:

1. Designs

It is possible to protect the design or look of an item and this form of protection usually applies to a manufactured or handmade product. The design registration protects the visual appearance of the product but not the product itself. A design registration is able to be registered with IP Australia and, the registration lasts for an initial period of five years, and may be renewed for another 5 years.

2. Copyright

Copyright is a form protection which normally attaches to an original work of art (including photography), literature, music, film, broadcast and computer programmes. Copyright is not capable of being registered, however, to assert ownership, you would normally record the first date or year of its publication immediately after the © symbol and this gives the owner of the copyright the exclusive rights to the reproduction, adaption or dissemination of that work. Copyright protects the work from being copied and gives the owner the exclusive right to licence the work for a period of up to 70 years after the death of the creator.

3. Trade Marks

A Trade Mark is something which is used to distinguish the goods or services of one business from another. A potential Trade Mark may be a word, phrase, letter, number, shape, colour, picture, logo, sound, smell, aspect of packaging, or, a combination of two or more of these. An individual or a business would normally use a Trade Mark to distinguish itself from other similar businesses in the market place and, frequently, a Trade Mark will become an integral part of that business.

Once registered with IP Australia (a trade mark lawyer can do this), the owner of the Trade Mark has the exclusive right to use, authorise others to use, or sell the Trade Mark. Registration lasts for 10 years and may be renewed every 10 years thereafter and its registration is asserted by the use of the ® symbol. A trade mark lawyer can help with the registration process.

If a Trade Mark has not been registered, a person who has used that Trade Mark over time may still be able to take legal action to prevent someone from using their Trade Mark and this is termed a Common Law Trade Mark and is asserted by the use of the ™ symbol. However, establishing ownership of the Common Law Trade Mark without its registration will be difficult, time consuming, and much more expensive and proof will need to be produced as to its use, when it commenced and, that a valuable asset has been established by using the Trade Mark.

4. Patents

A Patent is able to be registered with IP Australia to protect a device, substance, method or process or computer programs. Once issued, a Patent gives the owner the exclusive right to exploit the invention, or, to authorise others to do so.

There are two forms of Patents available in Australia:

  1. Innovation Patent – this form of Patent requires an innovative step rather than an inventive step and is normally applied for to provide cover for a development in technology already in existence. Protection lasts for up to 8 years;

  2. Standard Patent – to succeed in obtaining a Standard Patent, the subject matter must be new and novel (an invention which has never previously been publicly disclosed in any form, nor commercialised in any way) and involves an inventive step (not being previously in existence) and something which is not obvious to an experienced person in that particular field.

An application for a Standard Patent will require detailed specifications of the invention including how it works. Once a Standard Patent is granted, the owner then has the exclusive right to commercially exploit the invention, license the patent to others, and, prevent others from using or selling the invention for up to 20 years.

Taylor Smart has many years’ experience with all aspects of intellectual property, and our helpful copyright, patent and trade mark lawyers are able to assist with prompt and efficient service.


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