Intellectual property (IP) is a category of property which is intangible and emanates from the human intellect.
It generally refers to the ownership of ideas, concepts and designs sometimes known as “property of your mind”.
The main types of intellectual property include:
• trade marks;
• copyright;
• patents; and
• designs.
Disputes arise when IP is used without permission.
An IP lawyer can help a wide range of people, including those who have had their intellectual property rights breached or who have been accused of infringing someone else’s IP. They will provide you with relevant legal advice, as well as prepare legal documents, conduct negotiations and pursue or defend claims of intellectual property breaches to ensure your rights are protected.
IP law is a complex area that can be difficult to understand. If you believe your IP rights have been breached or you’ve been accused of infringing on someone else’s intellectual property, do not hesitate to seek legal advice from experienced copyright and intellectual property lawyers, like us here at Gibbs Wright Litigation Lawyers.
You can discuss your matter in a free, no-obligation consultation today.
A trade mark is a registered sign that distinguishes a product or service from other products or services.
“Sign” under the Trade Marks Act 1995 (Cth) includes a letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent.
A trade mark can be registered for goods, services or both, and registration provides the registered trade mark owner with exclusive rights to use (or authorise the use of) the trade mark.
A registered trade mark is infringed when a person uses (as a trade mark) a sign that is substantially identical with, or deceptively similar to a trade mark in relation to:
• goods of the same description as the trade marked goods;
• services closely related to the registered goods;
• services of the same description as the trade marked services; or
• goods closely related to the registered services.
Infringement can also occur in situations such as when:
• a trade mark is applied to registered goods after they have been altered;
• a trade mark is altered, or partially removed or obliterated, from registered goods;
• another trade mark is used on registered goods; and/or
• any matter is used on trade marked goods that is likely to injure the reputation of the trade mark.
A legal claim may still be made if a trade mark is unregistered, on grounds such as misleading or deceptive conduct, or passing off.
Copyright is a bundle of rights that protects the original expression of ideas.
Such rights are automatically held by visual artists, musicians, writers and film makers when they create an original work. They include rights to reproduce the work, perform or display it publicly, and distribute copies of it.
To be protected by copyright, the subject matter must be in material form (not an idea or thought). The Copyright Act 1968 (Cth) divides copyright into:
• literary works, such as books, articles, poems, scripts and compilations ( for example databases);
• artistic works such as photos, paintings, sculptures and maps;
• dramatic and musical works; and/or
• audio-visual works, such as films, broadcasts, sound recordings and multimedia.
Copyright protection generally applies for the life of the person who created the protected material, plus 70 years.
The protection commences when the work is first written down or recorded (literary, dramatic, musical or artistic works), when the first copy of it is produced (film), or when it is first broadcast from within Australia (sound or television).
A copyright infringement occurs when a “substantial part” of copyrighted material is used without the permission of the copyright owner. “Substantial part” is not defined in the Act but courts consider the deciding factor to be the quality of what is copied rather than the quantity.
There are two types of infringement: direct and indirect. Direct infringement involves the unauthorised use or reproduction of copyrighted works.
This can occur when a person substantially reproduces, copies, distributes, displays or authorises the infringement of copyrighted work. Indirect infringement involves unauthorised dealings with copyrighted work, rather than infringing the work itself.
A patent is an exclusive right to exploit a particular invention for a period of time, generally 20 years. A patentee (patent holder) has the right to stop others from making, using or selling the invention in Australia without permission, as well as the right to grant licences to others to make the invention.
Under the Patents Act 1990 (Cth), an invention (a device, substance, method or process) is patentable if it meets certain criteria such as being novel and useful. A patent may be granted to the inventor, a person who otherwise has legal title to the invention, or an employer of the inventor (such as a company or organisation).
Patent disputes generally involve a party using another party’s patented invention without permission. Disputes can also arise about ownership of a patent, or the extent of patent rights granted to a party.
The Designs Act 2003 (Cth) defines “design” as the overall appearance of a product resulting from one or more visual features of the product. Visual features include shape, configuration, pattern and ornamentation. The registered owner of a registered design has exclusive rights which include rights to:
• make (or offer to make) a product which embodies the design;
• import such a product into Australia for trade or business;
• sell, hire or otherwise dispose of (or offer to sell, hire or otherwise dispose of) such a product;
• to use such a product in any way for trade or business; and
• to authorise another person to do any of the things listed above.
A design infringement occurs if, without permission, a person deals in certain ways with a product that embodies the design, or a design that is substantially similar to it. That dealing includes making, importing, selling, hiring or otherwise infringing the exclusive rights held by the registered owner of the registered design.
There are two types of infringement — primary and secondary. Primary infringement involves making (or offering to make) a product that embodies the registered design, or a design that is substantially similar to it. Secondary infringement involves the other types of dealing with the product (as listed above).
Under the Designs Act 2003 (Cth), a person who is threatened with infringement proceedings in respect of a design can apply to a court for:
• a declaration that the threats are unjustified;
• an injunction against continuation of the threats; and
• damages resulting from the threats.
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