Frequently asked questions (FAQs)

Trademarks

1. What is a trademark? A trademark is used to identify a product or a service. It can be a word, name, phrase, letter, number, shape, logo, sound, smell, colour, aspect of packaging, movement, taste, feel, etc. or any combination of these.
2. What rights does a registered trademark give me? A registered trademark confers the exclusive right to use the trademark in the marketing and promotion of goods and services of the class in relation to which the trademark is registered. Being exclusive, the trademark owner can enforce the exclusive right and prevent others from using it in relation to that class.
3. Do I have to register a trademark? No. An unregistered trademark can be used, but registering a trademark has the following advantages:
  • It can be owned.
  • It is easier to sell and to license.
  • It is easier to pursue infringers.
4. Is trademark registration 'worldwide'? No. A trademark must be registered in each country where having a registration trademark is sought. The Madrid Protocol provides an efficient way of applying for a trademark in many countries at the same time.
5. How long does a trademark last? Initially, for 10 years. Registration can be renewed each 10 years on payment of a renewal fee.
6. How can I find out if the trademark that I want to register is already registered? You can search the ATMOSS database online at IP Australia's website.
7. How do I make an application to register a trademark? You can make an application online at IP Australia's website.
8. When can I use the ® symbol? You can use the ® symbol next to your trademark to indicate that it is registered.
9. Is it compulsory to use the ® symbol? No, it is not compulsory.
10. Are there any disadvantages to not using the ® symbol? By using the ® symbol you put potential infringers on notice that your trademark is registered, and that you have all the exclusive rights of a registered trademark holder, including the right to pursue infringers.
Not using the ® symbol means that you do not communicate those messages.
11. When can I use the ™ symbol? Using the ™ symbol next to your trademark indicates that it is not registered, but shows that you attach importance and value to your unregistered trademark.
For example, you may have applied for registration, and until registration actually occurs, you want to call attention to the importance and value you attach to it.
12. Is it compulsory to use the ™ symbol? No, it is not compulsory.
13. Are there any disadvantages to not using the ™symbol? Although your trademark may be unregistered, you benefit by using the ™ symbol. By doing so you communicate the value and importance you attach to it, and that you may well pursue users who, while entitled to use your unregistered trademark, may nevertheless be guilty of misleading and deceptive conduct or passing off.
14. Once I register a trademark, can I use it to promote all my products, as well as the ones mentioned in my trademark application? When you apply for registration of a trademark you must nominate one or more classes of goods and services where you intend to use your trademark.
You can use your trademark to promote all your products and services within that class, but you cannot use it as a registered trademark to promote goods and services of a different class.
15. Can I register a trademark that sounds the same as an existing trademark, if I use it for different products? If the extent of similarity might lead to confusion between the two, no you cannot register such a trademark.

Domain names

1. What is a domain name? A domain name is an internet address that is used to direct internet users to your website, and emails to your email account.
2. What rights does a domain name give me? As the registered holder of a domain name you have the sole right to direct internet users to your web pages and emails with that domain name address.
3. Is my domain name 'worldwide'? All registered domain names, including their extensions such as '.com' and '.au' are worldwide in the sense that any internet user in the world that visits that domain name with those extensions will always be directed to your website.
However, a domain name can be registered with different extension such as '.com', '.biz' and '.org', and can also be registered with different country extensions such as '.au' for Australia and '.nz' for New Zealand.
A domain name is not worldwide in the sense that it can be registered by different persons who have registered it with different extensions, such as different country extensions.
4. How long does the registration of my domain name last? Indefinitely, so long as the registered holder continues to pay registration renewal fees.
5. Am I entitled to a domain name that is the same as my trademark? If it is available, yes.
6. Am I entitled to a domain name that is the same as my company name or business name? If it is available, yes.
7. How can I find out if the domain name that I want to register is already registered? You can undertake a search with any domain name registrar.
8. How do I make an application to register a domain name? You can apply to register a domain name with a domain name registrar.

Copyright (including software)

1. What is copyright? Copyright is a property right that protects the way in which something is expressed. It does not protect ideas.
For example, if you write a short story based on the idea of an undersea city, the written text would be protected by copyright. However, someone else could write a story about an undersea city, using their own words, without necessarily infringing your copyright.
2. Does copyright protect my ideas and innovations recorded in the copyright work? No. It only protects the way that you express your ideas. If another person expresses the same idea in a different way, such as with different words, the first copyright is not infringed.
3. What rights does copyright give me? A copyright holder has the following rights in relation to the copyright work:
  • to copy it
  • to publish it
  • to license it
  • to translate it
  • to make an adaptation of it
  • to perform it
  • to broadcast it.
The copyright holder also has the right to bring proceedings against an infringer.
4. Does copyright need to be registered? In Australia, no.
5. Does copyright subsist 'worldwide'? Amongst countries that are members of the Berne Convention, yes.
6. How long does copyright last? The duration of copyright for most types of copyright work is until 70 years after the death of the author. The duration can be shorter for some types of works.
7. When can I use the © symbol? Only the owner of copyright can use the © symbol. The copyright owner may be someone other than the author.
8. How is the © symbol used? The usual way of using the © symbol is as follows:
© [followed by the owner's name] [followed by the year in which the copyright work was created], for example
© John Smith 2012
9. Is it compulsory to use the © symbol? No.
10. Are there any disadvantages to not using the © symbol? By using the © symbol the owner calls attention to the fact that copyright subsists, and that the rights conferred on the copyright owner are claimed, including the right to bring proceedings against an infringer.
11. How much of another person's copyright work can I use without their permission? There is no rule that using up to a specific percentage of another person's copyright work does not require permission. Even a very minor use, such as reproducing a section of musical riff, or a paragraph in a book, could amount to infringement.
12. Are copyright works on the internet 'free' so that I can freely copy them? If the terms of use of a copyright work on the internet, such as open source code or a Creative Commons licence, permit the work to be copied, then you can, if you comply with the conditions (if any) that the copyright holder imposes.
But generally, a copyright work on the internet is not able to be copied without the copyright holder's permission.

New products, processes and inventions (including patents)

1. What is a patent? A patent is granted to the owner of a new product process or invention that was not previously known.
2. What rights does a patent give me? A patent confers upon the patent holder the right to stop others using the patented product, process or invention in the country in which the patent is granted.
3. Does a patent need to be registered? Yes.
4. Does a patent operate 'worldwide'? No. A separate patent needs to be sought and registered in each country where the right to realise economic benefits from the product, process or invention is sought.
5. How long does a patent last? Standard patent - 20 years from the date of application for the patent. (Up to 25 years for pharmaceuticals.)
Innovation patent - 8 years from the date of application for the patent.
6. How can I find out if my new product, process or invention has already been patented? Search the AusPat database on IP Australia's website.
7. Can I start to sell my product, process or invention to see if it is worthwhile to patent it? After you have filed you patent application, yes. If you do so before filing the application, your product, process or invention is no longer new, and no longer eligible to be patented. But be aware that selling your product after filing your patent application will remove your options in relation to the lapsing of a provisional application.
8. Can I exhibit or show my new product, process or invention to a trade show to see if there is enough interest to justify patenting it? After you have filed you patent application, yes. If you do so before filing the application, your product, process or invention is no longer new, and no longer eligible to be patented.
9. Can I show my product, process or invention to a potential investor to see if it's worthwhile to patent it? After you have filed your patent application, yes. If you do so before filing the application, you must first have a confidentiality agreement in place, otherwise your product, process or invention is no longer new, and no longer eligible to be patented.
10. Can I show my product, process or invention to a potential licensee to see if it is worthwhile to patent it? After you have filed your patent application, yes. If you do so before filing the application, you must first have a confidentiality agreement in place, otherwise your product, process or invention is no longer new, and no longer eligible to be patented.
11. How do I make an application to register a patent? You can file the application online or download an application form from IP Australia's website. You can also engage a patent attorney to file the application for you.
12. How do I indicate on my product that a patent is pending and how does it help me? You can show 'patent pending' on your product. This notifies the public that the item upon which it appears is the subject of a pending patent application. It puts a potential 'copycat' on notice that the patent holder, once the patent is granted, may commence infringement proceedings against the 'copycat'.
13. How do I indicate on my product that a patent is granted and how does it help me? You can show 'patent [followed by its number]' on your product. This notifies the public that the item upon which it appears is patented. It puts a potential 'copycat' on notice that the patent holder may commence infringement proceedings against the copycat.

Trade secrets, know-how and confidential information

1. What are trade secrets, know-how, or confidential information? Confidential information is any type of information that you regard as confidential. Trade secrets and know-how are subsets of confidential information.
Confidential information can be business information such as financial records, marketing plans, customer lists etc. Trade secrets and know-how can include all types of technical information.
2. How should I treat my confidential information? To be afforded protection the information needs to be treated as being confidential, For example, it should be marked as being confidential, kept in a secure place when not actively in use, shared only with those on a need-to-know basis, all copies are accounted for, etc.
3. What rights do trade secrets, know-how, or confidential information give me? You can use your trade secrets, know-how, and confidential information. If your trade secrets, know-how, or confidential information have been misappropriated, you can commence proceedings against the person that misappropriated them.
4. Does a trade secret, know-how, or confidential information need to be registered? No.
5. How long do these types of intellectual property rights last? For as long as they remain outside the public domain.
6. How can I protect my trade secrets, know-how, or confidential information from misuse by my employees? By having clear confidentiality obligations in employment agreements.
7. How can I protect my trade secrets, know-how, or confidential information from misuse by contractors and consultants that I engage? By having clear confidentiality obligations in your agreements engaging consultants and contractors.
8. How can I protect trade secrets, know-how, or confidential information from misuse if I disclose them to business associates? By having a well-drafted confidentiality agreement.

External appearance of a product (registered design)

1. What is a registered design? A registered design protects the shape, configuration, pattern or ornamentation of a product, that is, what gives a product a unique appearance.
2. What rights does a registered design give me? A registered design confers upon the holder the right to stop others using the registered design in the country in which the design is registered.
3. Does a registered design need to be registered? Yes.
4. Does a registered design operate 'worldwide'? No. A separate registered design needs to be sought in each country where the right to realise economic benefits from the registered design is sought.
5. How long does a registered design last? A registered design lasts 5 years. Before the expiration of that time it can be renewed for a further period of 5 years. As it can only be renewed once, the maximum duration of a registered design is 10 years.
6. How do I search existing registered designs to see if my design is new and distinctive so that it can be registered? You undertake search for a registered design on IP Australia's website.
7. How do I make an application to register a registered design? You can file the application online or download an application form from IP Australia's website. You can also engage a patent attorney to file the application for you.

Layout or plan of an integrated circuit

1. What are circuit layout rights? Circuit layout 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
2. What rights do circuit layout rights give me? Circuit layout rights confer upon the holder the right to stop others using the circuit layout.
3. Do circuit layout rights need to be registered? No.
4. Does an integrated circuit plan subsist 'worldwide'? Among countries that are members of the World Trade Organisation, yes.
5. How long do integrated circuit plan rights subsist? Circuit layout rights last:
  1. if they are not commercially exploited – 10 years from when they commenced, or
  2. if they are commercially exploited within that time – 10 years after the calendar year in which the layout was first commercially exploited.

Plant breeder's rights (PBR)

1. What is meant by PBR? Plant breeder's rights (or PBR) describe the type of intellectual property right that protects new varieties of plants and trees.
2. What rights does PBR give me? PBR confers upon the holder the right to stop others using the PBR in the country in which the PBR is registered.
3. Does PBR need to be registered? Yes.
4. Does PBR operate 'worldwide'? No. PBR can be registered in each country that is a member of an international treaty called International Union for the Protection of New Varieties of Plants.
5. How long does PBR last? PBR lasts:
  1. in relation to trees and vines, for 25 years, and
  2. in relation to other plants, for 20 years.
6. How do I search existing PBR to see if my new plant variety will be sufficiently new and distinctive to be registered? You can search for a PBR on IP Australia's website.
7. How do I make an application for PBR? You can file the application online or download an application form on IP Australia's website. You can also engage a 'qualified person' to file the application for you.

Ownership of intellectual property

1. Do I own the intellectual property created by my employees? You own the intellectual property created by your employees in the course of their employment. You do not own the intellectual property created by your employees outside the scope of their employment.
2. Do I own the intellectual property created by contractors and consultants that I engage? No, unless there is a specific provision to this effect in the agreement by which you engage the contractor or consultant.