Intellectual Property Law FAQs
Q. What is intellectual property?
A. Intellectual property, or IP for short, refers to creations of the human mind which can be legally owned. Intellectual property can often be bought and sold like other products. For example, the rights to a patented invention or copyrighted book can be bought or sold. Intellectual property is protected by a variety of laws, such as copyright, trademark, and patent law.
Q. Why is it important for me to manage my intellectual property?
A. Ensuring that your intellectual property is protected means that you have exclusive rights to make, sell, or use what you have created. For example, by patenting an invention you ensure that competitors are not able to copy its design and profit from your hard work. When you register a trademark, you ensure that a particular sign or symbol becomes associated with your brand. Failing to manage these things could lead to you missing valuable opportunities for enhancing your brand.
Q. Is there a peak body for intellectual property law in Australia?
A. Yes, IP Australia is the federal government agency responsible for administering intellectual property laws. IP Australia handles applications and registrations for patents and trademarks, runs the Patent Office, and provides advice and assistance regarding intellectual property. Many of their services can be accessed online through their website, and if you require the services of an expert to help with the complete process, contact LGM Advisors today on (03) 9832 0608 or by email at firstname.lastname@example.org.
Q. Does intellectual property law differ throughout Australia’s states and territories?
A. The three main areas of intellectual property law, patents, copyright, and trademarks, are all protected by federal legislation. This ensures that intellectual property rights and obligations are largely uniform throughout Australia.
Q. Do I have to apply for intellectual property protection?
A. Some forms of intellectual property protection require registration in order for them to be enforced. For example, a patent application must be lodged with IP Australia. Trademarks also require registration, again through IP Australia. Copyright protection on the other hand is free and automatic, with no requirements for registration or application.
Q. How do I commercialise my intellectual property
A. Although intellectual property laws grant you exclusive rights to the commercialisation of your creation, you do not need to handle this commercialisation on your own. You are able to license other companies or entities to commercialise your product for you, in a way which suits your interests. For example, an author may license a publisher to print a book. The same goes with trademarks and patents; they can be licensed and sold at the discretion of the owner.
Q. What is copyright?
A. Copyright law is designed to protect creative expressions of ideas, without protecting the actual ideas themselves. Copyright protection applies to an expression the moment it is first documented, whether electronically or on paper. Copyright law is administered under the Copyright Act 1968. Although copyright laws differ internationally, Australia has signed several treaties which increase the copyright protection of both international works in Australia and Australian works overseas. Copyright protection for written works created after 2005 lasts the lifetime of the author plus 70 years.
Q. What is a trademark?
A. A trademark can be almost anything that is used to clearly differentiate your brand from that of another trader. Letters, words, numbers, phrases, sounds, shapes, smells, logos, pictures, package design, etc. are all examples of things that may be eligible for trademark protection should they identify your unique products or services.
Trademarks often form a vital component of a trader’s identity, used to signify things in the minds of consumers and competitors. An example of a trademark is Qantas’s flying kangaroo logo. Trademarks require registration with IP Australia in order to be legally enforced. Application information can be found on their website. Trademark law is laid out under the Trade Marks Act 1995 and the Trade Marks Regulations 1995.
Q. What is a patent?
A. A patent is a government-issued license which grants exclusive rights to commercially exploit a device, substance, process or method that is inventive, useful, new, and able to be applied industrially. Patents are legally enforceable, with protections generally lasting 20 years for a standard patent, or 8 years for an innovation patent.
Patent applications are subject to an extensive review process. Applications can take anywhere for six months to several years to process, and many fail due to the strict formality requirements and examination procedures inherent in the process. For this reason, it is recommended that anyone seeking patent protection for an invention should obtain legal advice from a patent lawyer, who will ensure that the invention meets any requirements under patent law and can subsequently review an application to ensure it will meet the IP Australia’s requirements.
Q. What should I do if my intellectual property rights have been infringed?
A. If you have concerns about your intellectual property rights you should consult a lawyer as soon as possible. Damage caused by intellectual property breaches often becomes harder to reverse the longer the problem is left unchecked. Examples of breaches might be if someone else has been manufacturing a product without license that you have patented, or someone has made your music available for free download online. An intellectual property lawyer will be able to examine your circumstances and advise you on how best to protect your intellectual property interests.