Intellectual Property Case Studies

Intellectual property, or IP for short, refers to unique creations made through the use of the human mind which can be legally owned. Usually, for the purposes of IP law, this means that the ideas have commercial value of some kind. Intellectual property rights differ depending on the type of intellectual property concerned, as the law differs in its protection of different types of ideas and their applications. For example, trademarks, patents, and copyright are all examples of intellectual property that are each protected by separate legislation.

Ownership rights vary depending on the type of intellectual property in question. Copyright, for example, is automatically and freely applied to any original and creative work published by an author eligible for copyright protection in Australia (a citizen, resident for work purposes, or other protected persons). On the other hand, patents and trademarks require a paid registration application to be made to IP Australia.

Intellectual property law can be used to protect brands, inventions, and other important assets. Therefore it is important that businesses learn to manage and protect their intellectual property.

IP Australia outline the importance of intellectual property for businesses and other organisations through some relevant case studies.

Copyright

In Australia, copyright protection is enforced through the Copyright Act 1968 (Commonwealth). As this is federal legislation, the protections afforded under the Act are uniform throughout the country. The Act has been the subject of several amendments to ensure that it has kept up-to-date with new forms of creative expression. IP Australia interprets copyright as an instrument designed to protect any original expression of an idea, but not the idea itself.

For example, books, journals, newspapers, artworks, recordings of video or sound, written music or lyrics, films, film scripts, computer databases, and programs are just some examples of the type of works that are entitled to free and automatic copyright protection.

There are circumstances when it is lawful for another party to use copyright material, but these circumstances are clearly defined and quite narrow, meaning that it is hard for abuse of the material to occur as a result of lawful use. If you are unsure of your exclusive rights under copyright, or believe your copyright has been infringed, you should consult with an intellectual property lawyer to ensure that any issue is resolved as quickly as possible.

Trademarks

A trademark may be a sign or symbol that is used to differentiate your products from those of other traders or organisations. Trademark rights can be granted to an applicant for a word, phrase, smell, logo, shape, colour, etc that may be used to identify the applicant’s brand. Once granted, a trademark awards exclusive commercial rights to the owner regarding the sale, licensing, or use of that trademark with the products it is registered for.

Like Copyright, trademarks are also governed by Commonwealth legislation. The Trademarks Act 1995 offers awards uniform trademark rights across Australia.

A trademark can be licensed or sold once rights are acquired; this is an example of how your intellectual property can become a tangible asset as well as a vital marketing tool.

Patents

Patents are licenses issued by the government (through IP Australia) which grant inventors exclusive rights to the commercialisation of an invention. That invention can be a device, method, substance, or process which is useful, new, and inventive compared to anything that is already known.

Patents are legally enforceable through the Commonwealth Patents Act 1990.

Patents, like trademarks, require a paid application to be submitted to IP Australia for consideration. Unlike a trademark application, which is a fairly straightforward process, patent applications take many months to complete and are subject to a number of difficulties. Patent applications are often rejected due to applications being filed with improper information, or not meeting formality requirements. For this reason it is important to have patent applications checked by an intellectual property lawyer or patent lawyer before submission to ensure that they meet IP Australia’s strict requirements.

Case studies

Trademark – Australian Made, Australian Grown

A highly recognisable trademark exists in the form of the Australian Made, Australian Grown logo. Consisting of a golden kangaroo within a green triangle, the logo is an example of a trademark that is licensed by the not-for-profit organisation, Australian Made, to products that are made or grown completely within Australia.

According to IP Australia, the Australian Made, Australian Grown logo is the only registered country-of-origin trademark for Australian products. It is used by over 1700 companies on over 10,000 products sold domestically and internationally.

This trademark, like all others that are entitled to legal protection in Australia, is registered through IP Australia. It is a potent example of the ability a trademark has to convey quality and authenticity. 

Patents – WLAN (WiFi)

WiFi is something that millions of businesses and consumers utilise every day. Invented through the efforts of CSIRO radio astronomy researchers, WLAN as it was originally known was patented in 1996.

Although there were a number of competing technologies that existed at the time, WLAN was unique in that its hardware enabled a signal to be transmitted with reduced echo, which preserved signal strength. This unique and useful innovation is what entitled WLAN to patent protection.

Initially it was difficult for the CSIRO to find commercial interest in their invention. Then, in the early 2000s, things took off as the internet became more widely-used.

The CSIRO subsequently attempted to convince information technology companies to acquire licenses to use the patented WLAN technology. This proved unsuccessful at first, with many manufacturers using the design without license.

Finally, after a protracted legal battle with some of the world’s most powerful ICT companies, the CSIRO managed to secure license agreements with about 90 percent of the industry. This resulted in an estimated $430 million in revenue from WiFi licence rights as of 2012.

This would not have been possible if the technology hadn’t been patented in 1996. The patent issued by the Australian government managed to withstand intense legal scrutiny from courts in the US, therefore allowing the CSIRO to profit from its invention.

Copyright – Wamod Namok, Kangaroo

Well known indigenous artist Wamod Namok learnt first-hand the value of intellectual property when his copyright was infringed in 2005. Reproductions of Namok’s famous work, Kangaroo, were listed for sale online. The listings stated that the reproductions were licensed and royalties would be paid to Namok as a percentage of sales. This proved to be false, and the reproductions were unauthorised. Namok received no royalties for the sale of his work.

Artists in the Black, an organisation with which Wamod Namok was associated, secured the pro bono assistance of lawyers who issued a letter of demand to the eBay operator who was selling the unauthorised copies.

The operator responded with a claim that he had obtained a ‘license’ signed by Namok himself at the gallery which purchased the original Kangaroo. Namok, who is unable to read or write English, thought that the document he signed was a mere receipt of purchase being issued regarding the sale of the original Kangaroo to the gallery.

Upon learning this, the lawyers acting on behalf of Artists in the Black issued another letter of demand, this time stating that the license was void because it was made without proper understanding on behalf of the artist. The letter also made it clear that the eBay operator and gallery had absolutely no legal right to make or sell reproductions of Kangaroo, and that they were to ensure that they never did so again.

This case is an example of how important it is for artists and other intellectual property rights holders to manage and protect their IP. There are some unfortunate cases, such as that of Wamod Namok, where the rights holder is unaware of their rights under copyright, resulting in unlawful use of copyright material.

Contact LGM Advisors today on (03) 9832 0608 or by email at marketing@lgmadvisors.com.au.