Legal Advisory
What is the Reasonable Person Test?
The reasonable person test is a benchmark of behaviour for determining whether something is reasonable or not. The idea of a reasonable person is a made-up concept used to help
Welcome to our detailed guide on intellectual property law in Australia.
This guide, written by Farrah Motley, Director of Prosper Law and an experienced intellectual property lawyer , explains what intellectual property is, the different types of intellectual property and recommendations on how to exploit intellectual property to benefit your business, as well as avoid intellectual property infringement.
IP protections in Australia include copyright, trademarks, patents, designs, and trade secrets, each with different protections and registration requirements
Ownership of IP usually belongs to the creator unless transferred, and licensing allows others to use the IP under agreed terms
Owners can take legal action against unauthorised use, with remedies like damages and injunctions
IP can be a valuable business asset, providing revenue through licensing, sales, or leveraging in negotiations
Intellectual property is the property of your mind. It is created when your ideas are transformed into a format that is recognised by law. Intellectual property law deals with how IP is owned, transferred and used.
Intellectual property can include symbols, colours, numbers, letters (and a combination of them), sounds, literary and artistic works, inventions, names and images used in the context of trade and commerce.
Various laws are available to protect creators of IP materials.
Primarily, these laws provide owners of intellectual property with an exclusive right to exploit their intellectual property for commercial gain. Because of this, would-be owners of intellectual property have the incentive to be innovative and push technology and society forward.
On the other hand, the unauthorised exploitation of intellectual property can cause economic and other kinds of harm to IP owners. That’s why it’s important to engage an IP lawyer to understand how to protect your IP.
Below, we provide an overview of the different types of intellectual property protection available in Australia:
Trademarks are often thought of as a business’ brand. A brand is a much broader concept than a trade mark.
A trade mark can be a symbol, phrase, number, image, letter, logo, aspect of packaging, word (in plain or stylised text) or any combination of them.
Trade marks can be registered or unregistered.
If a trade mark is unregistered, the owner only has the protection given by the Common Law Trade Mark rights, but not the Trade Marks Act 1995 (Cth).
If a trade mark is registered, the owner has the benefit of additional protections provided by the Trade Marks Act 1995 (Cth), as well as Common Law Trade Mark rights.
It is also important to know that in Australia, protection over a unique trade mark applies to the person who is first to use the trade mark, not the person who is first to register.
Issues can arise where a person is not the first to use a trademark but nevertheless seeks to register it. If the trade mark progresses through the application process, it will enter an “objection period”. If the person who is first to use the trade mark does not object to the registration within the objection period, that person may lose the right to use their trade mark.
Learn more about common mistakes in trade mark registration.
There are many misconceptions when it comes to copyright. Copyright is an intellectual property right that is granted to the owner (or author) upon its creation.
In Australia, copyright does not need to be registered to have the benefit of protection under the Copyright Act 1968 (Cth).
Copyright applies to the original expression of artistic and literary works. This includes things like written text, music (both the written notes and the sound itself), drawings, photographs, images, paintings, sketches and 3D recreations of them.
Unlike trademarks, patents, plant breeders rights and design rights, copyright is regulated by the Government’s Attorney General.
Learn more about copyright ownership and licenses in our article.
Patents are a very complex area of intellectual property law. An invention needs to be registered as a patent before it is protected by the Patents Act 1990 (Cth).
It’s important to know that if the details of an invention become public knowledge, you may lose the right to patent the invention. Creators need to make sure that if you are going to tell someone about your invention, you get them to sign an NDA before you do so.
Here’s a fun fact – Einstein used to be a clerk in a patent office!
Plant breeders’ rights are a form of intellectual property right granted to developers of new plant and tree varieties.
Plant breeders’ rights must be registered to have the protection of the Plant Breeders Rights Act 1994 (Cth).
Just like copyright, circuit layout rights in Australia are regulated by the Government’s Attorney General.
Circuit layout rights are defined in the Circuit Layouts Act 1989 (Cth) to mean:
“…a representation, fixed in any material form, of the three‑dimensional location of the active and passive elements and interconnections making up an integrated circuit”
Essentially, these rights protect the layout plans or designs of electronic components in an integrated circuit, computer chips, or semi-conductors used in personal computers and computer-reliant equipment such as:
A design right protects the overall appearance of unique products. The Designs Act 2003 (Cth) defines a design as:
“…in relation to a product, means the overall appearance of the product resulting from one or more visual features of the product.”
The Designs Act 2003 (Cth) describes a unique product as:
The Designs Act 2003 (Cth) describes visual features as including the shape, configuration, pattern and ornamentation of the product. A visual feature does not need to be functional, but can be.
However, a product’s feel, the materials used, an indefinite dimension and a repeat of a pattern are not considered to be visual features for the purpose of registering a design.
Designs must be registered to have the benefit of protection under the Designs Act 2003 (Cth).
Registering a trade mark doesn’t come cheap. If you’re running a small to medium-sized business, you may want to test your new brand before taking the plunge and registering it.
Remember, provided someone else doesn’t try and register the same trade mark (and you either miss the objection period or don’t object), the first person to use that mark has priority for registration purposes.
Don’t give away your copyright before you’ve even created it. Instead, use copyright as leverage to get the most out of your business deals.
To make sure you retain ownership of your copyright or, at least, maintain control, you need a properly worded licence agreement or intellectual property clause in your agreement.
The key to patentable inventions is to shh and keep them secret. Unlike a trade mark, which you might want to test for commercial viability before registering, you cannot “test” whether it is commercially viable to register a patent. You either choose to register the invention as a patent, or you don’t.
However, if you really do want to test an invention first, consider conducting some market research for your new invention using a bulletproof NDA.
If you’re just fooling around experimenting, plant breeder’s rights may not be for you. If, however, you are looking to seriously capitalise on your new variety of plant species, you should consider registering.
After all, you will lose the right to register if someone independently (yes, this has happened before) develops a plant variety that is indistinguishable from yours.
The key to any right over intellectual property is uniqueness, innovation and newness. If it’s not new, not only can you not claim rights over it, you may be infringing someone else’s rights.
For this reason, it’s vital to do your homework. Before you get amongst the weeds or engage an IP lawyer to register, communicate or enforce your intellectual property:
All intellectual property starts life out with one owner. Some examples include:
But intellectual property is property. That means it can be bought, sold and licensed just like any physical property can. This means that the original owner of intellectual property may not continue to be the owner.
Taking those three examples I gave above, the original owners may lose their sole ownership over their intellectual property in the following ways:
Getting the consent of the owner of the intellectual property in the form of an appropriately worded intellectual property license is your best protection against an infringement claim.
However, if you are already making use of intellectual property without the owner’s consent, be careful not to bring it to their attention. If your business has derived significant commercial benefit from the misuse of someone else’s intellectual property, you could be in for a rough ride.
Issues can arise when copyright materials are ‘orphaned’ and no clear owner can be determined.
Some brand owners will fight tooth and nail just to make a point to the world that they are the rightful owner and no one else can use their intellectual property. Think of heavyweights such as Facebook, Google, Microsoft, IKEA and Apple.
A sophisticated, large business can quickly and easily become aware when someone is misusing their intellectual property. If they choose to enforce their rights, they have some serious clout and resources to do this.
If you are going to choose to infringe someone’s intellectual property rights (which is not advised!), you may want to consider your avenues of communication. In a closed setting, with a very limited audience and minimal opportunity for exposure, you might get away with it.
But if you flout your bad behaviour in a public, publicly accessible forum, you’re asking for trouble. Websites and social media present an easy opportunity for intellectual property owners to find instances where their intellectual property is being misused. You’re also giving them the evidence to prove it.
Further, there is a common misconception that just because information, images, videos and other data are easily accessible on the internet, it is freely available to use. This is incorrect and can land you in hot water.
You can take legal action, which may include sending a cease-and-desist letter, negotiating a settlement, or pursuing court proceedings for damages or injunctions.
You should seek prompt advice from an IP lawyer if you think your IP rights have been infringed.
The duration of IP protection varies on the type of creation and protection.
For example, copyright protection lasts for the life of the author, plus 70 years. Trademarks can be renewed indefinitely every 10 years. While patents generally last 20 years from the filing date, with some pharmaceutical patents extending to 25 years.
Unfortunately, no. Australian IP rights are limited to Australia.
Your IP rights in Australia may help to support any claims overseas. However, to enforce your rights internationally, you need to seek protection or registration in other countries. Each country’s IP office will examine your IP, and you must comply with local laws to obtain and enforce rights abroad.
Unregistered IP, like unregistered trademarks or designs, may still have some protection under common law, but it is generally more limited and harder to enforce.
For example, passing off claims can protect unregistered trademarks, but proving them can be challenging. If available, registering your IP can provide stronger, legally enforceable rights and makes it easier to defend against infringement.
Yes, IP rights can be sold, transferred, or licensed to others.
This is typically done through a formal agreement that outlines the terms of the sale, transfer, or license, including any payments, duration, and conditions.
Selling or transferring IP rights can provide immediate financial benefits, while licensing allows the original owner to retain some control and benefit from ongoing royalties.
See our guide to intellectual property licence agreements for more information.
Drafting proper IP protections in your agreements can be make or break when commercialising your IP.
Learn more about intellectual property clauses in our article.
Absolutely! It’s important for all businesses using or creating IP to ensure that they have an effective intellectual property agreement in place. This enables a business to create, develop, licence or sell intellectual property without fear of infringing rights.
Explore why your business needs an IP agreement in our article.
Contact us for a free consultation
We provide legal advice to business and individuals across Australia, no matter which State or Territory you are located. Our easy-to-access, online legal services mean that you can talk to our lawyers wherever you are, at a time that suits you.
4.8
Google Reviews
Don’t hesitate – reach out for your free legal assistance today. Your peace of mind is just a click or call away!
The reasonable person test is a benchmark of behaviour for determining whether something is reasonable or not. The idea of a reasonable person is a made-up concept used to help
In Australia, company directors have a number of duties and obligations. One of those obligations is the duty to prevent a company from trading whilst insolvent. Accordingly, it is important
The Australian Consumer Law is one of the most important laws for online businesses to understand. In this article, you’ll hear from an eCommerce lawyer about how the Australian Consumer Law may apply