Did you know?

We have set out some interesting facts about intellectual property which we hope you find interesting.

Business and company names

It is a misconception that your registration of a business or company name will give you a proprietary right with respect to that name. Registration of a business or company name does not guarantee ownership of that name.

Just like a domain name is merely an online identity, a business or company name is simply a process adopted by Government to allow third parties to determine who the persons behind a certain business or company are. Consequently, mere registration of a business or company name does not itself grant ownership of that name.

Only a registered trade mark will provide exclusive rights within a jurisdiction (such as Australia) with respect to use of a trading name or logo.

Is your business or company name registered as a trade mark?

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Intellectual property

Intellectual property encompasses all registered or unregistered design rights, trade marks, Australian or foreign patents, copyright, confidential information, trade or business names, database rights, know-how, technology and other intellectual property rights whether capable of registration or not.

The legal definition for intellectual property is "a group of rights created by law that afford protection to creative and intellectual effort, it represents the property of your mind or intellect".

Intellectual property rights are inherently invisible, but are very valuable assets provided that they are properly identified and protected. They are created or acquired by a business on a daily basis and are often overlooked because they are intangible assets. Like tangible assets that are easily identified, valued and reported in a balance sheet, intellectual property assets must be systematically identified, protected and maintained in order to maximise their value and strategic advantage and to minimise the risks of third party abuse or inadvertent loss.

Intellectual property rights include trade marks, copyright, confidential Information, trade secrets, designs, patents, plant breeder’s rights and circuit layouts.

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Registered Trade Marks Attorney

A Registered Trade Marks Attorney is a person who is experienced in assisting clients with the protection and commercial exploitation of trade marks and their associated rights. A Registered Trade Marks Attorney is required to be registered to practice under the Regulations relating to the Trade Marks Act 1995.

A Registered Trade Marks Attorney is qualified to advise on the following:

• obtaining trade mark registration both in Australia and internationally

• conducting comprehensive searches in order to advise on the use, and registration of trade marks

• facilitating the licensing and assignment of trade marks

• assisting in the conduct of trade mark litigation in both Australia and internationally

Registered Trade Marks Attorneys enjoy the right of privilege in communicating with their clients with respect to intellectual property matters.

Above all, a Registered Trade Marks Attorney has tertiary qualifications and training in the laws relating to trade marks with an understanding of laws relating to patents, designs, copyright, trade practices, circuit layers, plant breeders rights and confidential information.

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Ownership of intellectual property

You must actively take steps to register your intellectual property and to obtain the legal ownership rights associated with that intellectual property. The exceptions to this statement are copyright and circuit layout rights, which are automatic.

If you choose not to register your intellectual property rights, you must rely on common law which will require you to establish prior use of the intellectual property. This can be quite time intensive and costly.

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Choosing a trade mark

It is essential to choose a trade mark which will be effective.

The Trade Marks Act broadly defines what may be registered as a trade mark. This includes any letter, word, name, numeral, device, brand, device, label, aspect of packaging (get-up), shape, colour, sound or scent. The trade mark should also be easy to spell, pronounce and remember in addition to being easy to distinguish from trade marks belonging to other traders offering similar goods and/or services.

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Registration of a domain name

Registration of a domain name is quick and inexpensive. However, a registered business name does not guarantee that your business or company name can be used for a domain name.

It is good practice to register variations of your domain name. This is a defensive measure which ensures that all variations lead to your website and prevents another person from cashing in on your good business name and reputation.

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Domain name disputes

Due to ‘cyber-squatting’ and the possibility of a person genuinely registering a domain name which is very similar to an existing domain name with respect to the trading of similar products or services, the domain name disputes are reality.

Domain name disputes may give rise to action under the Trade Practices Act 1974 (Cth), the common law action of ‘passing off’ and may result in trade mark infringement under the Trade Marks Act 1995.