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The laws of all developed countries allows for the protection of intellectual and creative efforts of individuals and companies.  Churchill attorneys are able to advise you on the appropriate form of protection for the fruits of your ingenuity.

A Quick Guide to Intellectual Property Rights

Intellectual property rights are broadly those rights stemming from the inventive or creative efforts of a person, or a group of individuals.  The vast majority of countries provide legal protection for the result of these efforts, typically giving the owner a period of time in which to profit from their efforts.  During the period of protection, the owner of the right is able to prevent a third party from exploiting the intellectual property.  This is often achieved by simply sending a letter of demand to the alleged infringer.  Where this approach does not yield the desired result, the owner of the intellectual property right is able to seek remedy from a competent court (in this country, typically the Federal Court of Australia). 


Some intellectual property rights are granted automatically by law (such as copyright), while others must be actively pursued in some formal manner (patents, for example).


Intellectual property rights are strictly territorial in nature, meaning that the right must be obtained and enforced on a country-by-country basis.  For example, where a company has only pursued patent protection in Australia for a new type of gearbox, they are not able to prevent a person from manufacturing and selling that gearbox in the United States.


Intellectual rights can be sold, licensed (exclusively or nonexclusively)and even willed to a third party.


We will now briefly discuss some of the more common intellectual property rights including patents, trademarks, designs, plant breeders rights and copyright.  Your intellectual property rights may fall into one or more of these categories, and we can provide further advice as to which category is most advantageous to your specific situation.


A patent is a form of intellectual property protection that is suited mainly to the protection of new and useful products (such as a new type of vacuum cleaner) or to a new method of doing things (such as extracting a pure metal from an ore).  To be patentable, an invention must be at least novel (new) and inventive (not just a routine manipulation of an existing product or process).  In order to preserve the novelty of your patent it is important to NOT disclose your invention to any third party before filing a patent application.


Patent rights must be actively pursued, with the process beginning with the filing of a patent application.  The application is assessed by an examiner at the patent office of the country in which protection is sought, and a decision is made whether or not the application will be accepted.  Various amendments can be made to the application in an effort to overcome any valid objections taken by the examiner. 


It is important to understand that there is no such creature as a “world patent”, or an “international patent”.  A PCT (Patent Cooperation Treaty) patent application is sometimes called an “international patent application”, however this terminology is somewhat misleading.  A PCT application is simply a method of retaining the right to file a patent application at a national patent office for an extended period of time.  Ultimately, the subject matter described and claimed in a PCT application must be examined and granted separately by each national patent office. 


The term of patent protection is typically 20 years, however Australia also has an “innovation patent” that is easier to obtain and has a term of only 8 years. 




Registered Trademarks.

Trademark protection is generally used for the protection of a brand name or logo. Trademarks such as “Nike” and “Boost Juice” are clearly valuable intellectual property assets for their respective owners.  The laws of many countries also allow for the registration of colours, shapes and even  smells as trademarks.


To be registrable, a trademark must be capable of distinguishing your goods or services from other traders.  It is therefore not possible to register a trade mark that is deceptively similar to an existing trademark.  For example, Australian courts have found if the mark “POSH PUPPY” is not registrable in light of the existing mark “HUSH PUPPIES” for footwear. 


Furthermore a trademark that is descriptive cannot be registered.  Thus, an application for a trade mark for “leather” in respect of footwear would fail, given that many shoes could be described as “leather ”.


Registered Designs.

This form of intellectual property protection is directed to the distinctive visual appearance of articles.  In the United States, this form of protection is termed a “design patent”. 


A registered design application may be directed to the three-dimensional shape of a product, or a two-dimensional pattern applied to the surface of a product.  Design law may be used to protect a broad range of articles including goods as diverse as clothing, electricals, furniture, toys, and automotive spare parts.


Design protection is generally easier to obtain than a patent; however the term of protection is relatively short at 10 years.  It is also important to remember that design protection does not cover how a product actually works, but just its appearance.  So, a competitor could alter the appearance of an article to escape infringing of your rights under design law. 



Copyright is directed to the protection of original “works”.  This can include works such as music, a novel, a film, drawing, sculpture, computer programs, and architectural plans.  In Australia, there is no provision for the registration of copyright, with the right automatically being conferred on the owner upon creation of the work. 


Copyright law only allows the owner of a work to prevent a third party from copying their work, and does not allow for a remedy against a person who independently arrives at a work that is substantially similar to yours .  Furthermore, copyright does not protect how articles work, ideas, concepts, styles, techniques or information per se. 


The term for copyright protection is relatively long and varies from country to country, however typically extends to 70 years from the death of the creator of the work.


Plant Breeders Rights.

Under Australian law, this form of intellectual property is directed to plant varieties that are distinct, uniform and stable.  Distinctiveness can be demonstrated by the uniqueness of morphological characteristics of the variety, or by comparative DNA and protein profiling, while uniformity is shown by the limited production of “off-types”.  A variety is stable if progeny plants retain key characteristics across generations.


Examples of varieties that are protection under Plant Breeders Rights legislation include the popular “Zee Sweet” fruit tree varieties created by Flemings Nurseries at Mt Dandenong, in Victoria. Another is the “Pink Iceberg” rose protected by Prophyl in Tasmania. 


The term of protection is 25 years for tree and vine varieties, and 20 years for all other varieties.






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