Australia: What is new in the Australian IP legal regime?

Last Updated: 11 July 2019
Article by Georgina Hey

2018 and 2019 have been unusually busy from the perspective of the plethora of government review across IP regimes, and subsequent changes to IP law in Australia. More changes are also coming in the near future. Many of the changes have been borne out of the Productivity Commission Inquiry Report on Australia's IP Arrangements, whilst others have developed in the periphery.

In the table below, we have a simple list of the changes, with our high level commentary to highlight some of the issues IP owners need to look out for. An overriding point for IP owners to note is that although many of the changes appear minor, the concern is that this tinkering is slowly seeking to diminish IP rights in Australia. The more positive view would be to see these changes as opening up Australia's IP protection regimes to encourage innovation from Australian companies and others.

Significant changes in the IP legal regime Key dates What does this mean for you?
Recent IP law changes

New country of origin food labelling requirements for Australia

A new system of country of origin labelling for food products now applies in Australia. The Country of Origin Food Labelling Information Standard 2016 (Standard) imposes stricter labelling requirements on "priority", as opposed to "non-priority", foods and is intended to help consumers better understand where their food comes from.

For more details on these laws, see our blog article here.

The new system applied as of 1 July 2018.

If your business has yet to update its packaging to comply with the new Standard or has any questions, you may be in breach of the new requirements and potentially exposed to enforcement action from the ACCC.

Part 1 of reform in response to the Productivity Commission's Report on Australia's IP Arrangements

The Government has implemented amending legislation and regulations with the aim of streamlining and aligning the administration of the Australian IP system. Changes are being rolled out to laws and regulations governing Designs, Patents, Trade Marks, Copyright, Plant Breeder's Rights, and even Olympic Insignia Protection. This forms the first part of the Government's response to, and acceptance of, the Productivity Commission Inquiry Report on Australia's IP Arrangements, which we have reviewed in a trade mark context here and here.

We identify 3 key specific changes:

1. Parallel importation of trade marked goods into Australia. This is in response to specific proposals that we reported on here.
2. Grace periods for removal of registered trade marks for non-use.
3. Plant Breeder's Rights (PBR) in essentially derived varieties (EDVs).

For more details on these key provisions, see our blog article here.

For a broader overview of the contents of the amendments, see IP Australia's summary here.

The laws have been rolled out over 3 key dates:

1. Certain provisions of the Act commenced on 25 August 2018
2. Certain Regulations commenced on 17 October 2018
3. The remaining provisions of the Act and regulations commenced on 24 February 2019

For specific dates for specific provisions/regulations, see IP Australia's summary here.

The new laws are largely aimed at procedural and administrative outcomes, with the underlying intention of encouraging innovation and competition. At the end of the day, IP stakeholders' substantive rights are not likely to be too heavily impacted. However, some of the changes provide clarity of lingering issues in the IP world, as discussed in our blog article here.

Repeal of the IP exception from competition law

As a result of amending legislation, intellectual property assignments and licenses and their conditions will have to comply with Australian competition laws, like any other commercial transaction of property or assets.

For more details on how these laws will operate, see our recent publication here.

The relevant provisions will commence on 12 September 2019

For businesses with IP arrangements structured to rely on the exemption, particularly agreements between competitors, the change will require a review of all existing IP arrangements for compliance with the CCA, and to adopt new approaches to the licensing and assignment of IP moving forward.

The 11th Edition of the Nice Classification is in force

The international system used to classify goods and services for trade mark purposes, known as the Nice Classification, has been updated to ensure that its lists remain current and include new products and services that have come to market.

For more details on the amendments to the classifications, see our blog article here.

The 11th Edition of the Nice Classification came into force on 1 January 2018.

For the most part, changes include clarification of current wording and the addition of new goods and services. However, if your business is looking to register their trade mark(s) internationally, or has any questions about the latest edition of the classification system, please get in touch with a member of our IP Team.

IP law changes to look out for

Part 2 of reform in response to the Productivity Commission's Report on Australia's IP Arrangements

In the second part of the Government's response to, and acceptance of, the Productivity Commission Inquiry Report on Australia's IP Arrangements, the focus has shifted to amendments to Australia's patent system. IP Australia released an exposure draft for public comment focusing on unintended consequences of the Bill or issues with the drafting (noting that the policies contained therein have already been agreed to by the Government).

The Bill covers (amongst other things):

1. amendments to the inventive step requirements for Australian patents;
2. the introduction of an objects clause into the Patents Act; and
3. the phasing out of the innovation patent system.

For now, the Government has introduced new regulations that will simplify the filing of translations of patent documents and will make technical improvements to the Patents and Designs regulations.

For our thoughts on the potentially unintended impacts of these changes, read our previous articles here and here.

1. The consultation process took place between 23 July and 31 August 2018, and is now closed.
2. The Government has decided that the Bill will not be introduced to Parliament in 2018 due to other priorities. The Government remains committed to the reforms and, subject to priorities, intends to introduce the Bill to Parliament in 2019.
3. The Government has however introduced regulations that will come into effect on 25 September 2019.

As with Part 1 of the reform, IP stakeholders' substantive rights are not likely to be too heavily impacted.

IP Australia's proposal to allow divisional applications for International registrations designating Australia

IP Australia has released a draft of proposed amendments to the Trade Marks Regulations 1995 for public consultation. The changes are designed to enable overseas businesses using the Madrid Protocol system to divide any Australian designations of International applications, the same way that national applications can currently be divided.

For more details on these proposals, see our blog article here.

1. The draft proposal was released in January 2019.
2. The draft regulations are proposed to be introduced sometime in 2019.
3. If the proposed changes are accepted, applicants of IRDAs would be able to file applications for divisional IRDAs 6 months after the regulations are registered.

Multinational businesses looking to designate Australia as part of their Madrid Protocol trade mark application should soon be able to take advantage of dividing their application in Australia, which is a functionality not available in many other countries to keep a trade mark application alive while any examination issues are being dealt with.

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.

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