Businesses trading in Australia should consider the protection of their intellectual property, including trade marks, patents, copyright, moral rights, designs and circuit layouts, domain names, trade names, business names and confidential information.
If a name or logo (and in some cases, a colour, sound or smell) is being used in connection with an Australian business, trade mark registration should be considered. Although not compulsory, registration gives some protection against other people using a substantially identical or deceptively similar mark in the course of trade.
Any person can apply to register a trade mark with IP Australia. A trade mark will be registered provided that it meets the requirements of the Trade Marks Act 1995 (Cth), there are no objections to the registration of the trade mark and the registration fees are paid.
Before a new logo or brand is developed, it is prudent to conduct searches, initially of IP Australia's database, for similar trade marks.
There are two types of patents available under the Patents Act 1990 (Cth), namely:
- a standard patent which gives the owner protection for 20 years; and
- an innovation patent that is available for inventions that do not meet the inventive threshold which gives the owner protection for 8 years.
Patent protection requires registration with IP Australia. The cost of patenting will depend, among other things, on the type of patent being granted and the number of countries for which protection is sought.
Design registration protects the appearance or 'look' of manufactured products. This includes the shape of articles. To obtain design protection, the design must be registered with IP Australia.
Australian copyright law is set out in the Copyright Act 1968 (Cth). There is no requirement to register a work for copyright. Copyright rights come into existence at the time that the work is put into material form.
In most cases, the period of copyright protection commences on the date of creation and expires on the date which is 70 years after the author's death.
As a result of Australia's obligations under a number of international treaties, almost all copyright works created overseas are protected in Australia under the Copyright Act.
A business name is a name under which a business may trade. In 2011, the National Business Names Registration Service was established to consolidate the business names registers previously operated by state and territory governments into a single national register. As a result, a business will now only need to register a name once, in order for that name to be registered throughout Australia.
The registration of a business name does not create a separate legal entity or give the owner any proprietary rights in the name. However, it will prevent other people from registering the same name, either as a business name or a company name.
Business names can be registered for a period of one year or three years and can be renewed.
The law governing business name registration is set out in the Business Names Registration Act 2011 (Cth).
Given that the first contact that many consumers have with a business is through the company's website, registering a domain name in an Australian second level domain, such as "your business.com.au", can be a good way to target Australian consumers. Like business names, the mere registration of a domain name does not confer on its owner any proprietary rights in the name.
There are a number of accredited second level domain name registry operators with whom a domain name can be registered. Many of the registry operators have a "who is" database which allows domain names to be searched. Registration generally provides the holder of the domain name with a two-year licence that can be renewed.
There are certain rules and requirements for the registration and administration of .au second level domain names, which are administered by .au Domain Administrators (auDA). These rules and requirements are, broadly speaking, more onerous than the rules and requirements for registration of a second level domain names in the .com space. Where a dispute arises in respect of an .au domain name, auDA's mandatory dispute resolution policy applies, providing an alternative to litigation. Decisions made under the policy are binding on the parties.
More recently, it has also become possible to register top level domain names (TLD), whereby a business can apply to register its company name, brand name or trade mark as an independent 'domain name space', that is, ".yourbusiness" instead of ".com". Registering a TLD can offer valuable protection for brand owners and can strengthen and reinforce a brand owner's trade mark rights. The registration process however is both time- and cost-intensive.
Applications to register a TLD are processed by the Internet Corporation for Assigned Names and Numbers, which is a non-profit international body that governs the naming and addressing practices of domain names.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.