Persons and companies can own Intellectual Property in three major forms: Trade Marks, Copyright and Patents.
Trade Marks
Trade Marks exist to protect the exclusive use of a person’s brand and avoid unlawful use of a Trade Mark by persons attempting to represent their own goods and services as being the same or associated with the goods or services of another person or company.
This can include the protection of specific wording, images or a combination of both. If a person who does not own a Trade Mark uses it unlawfully, the owner of the Trade Mark can take legal action against them for infringement of the Trade Mark.
Trade Marks must be registered with the Federal Register of Trade Marks in order for these protections to be provided pursuant to the Trade Marks Act, and will only apply to a specific set of goods and/or services which the owner has registered in relation to the Trade Mark.
If you have not registered a Trade Mark, but another person or company is clearly attempting to impersonate your business, you may have a claim available to you for the tort of ‘Passing Off’. A Passing Off claim is generally more difficult to establish than a Trade Mark Infringement claim, and accordingly it is generally recommended to register Trade Marks for wording, symbols and images used in the course of business.
If another party attempts to register a Trade Mark for a brand title, symbol or image that you have previously used but have not registered as a Trade Mark, you may have the right to intervene and prevent the registration of the new Trade Mark.
Copyright
Copyright protections exist to secure rights over use of creative works by the person or company responsible for the creation of the works.
This includes protections for literary, dramatic, musical or artistic works.
Copyright protections are provided automatically upon creation of the works, and do not need to be registered as is the case with Trade Marks. For example, Johnstone and Reimer Lawyers obtained copyright in this article as soon as it was created!
Copyright can be bought and sold as with other property rights. Copyright protections are not endless, and generally last until 70 years after the death of the author of the copyrighted work, or the date the work was made public, depending on the nature of the copyright work and when it was created.
If copyright in a work is infringed, the Federal Copyright Act 1968 allows the owner of the copyright to take legal action against the person or company responsible for the infringement.
Patents
Patents exist to protect the rights of an inventor to use and exploit an invention.
An ‘invention’ for the purposes of a patent includes a broad range of creations including traditional objects and machines, medications, software and even techniques (for example, medical techniques such as new methods of surgery).
In order for Patent protections to apply to an invention, it must be registered with the Federal Register of Patents.
For an invention to be patentable, it must meet certain requirements found within the Patents Act. These include that the invention must meet the definition of a ‘manner of manufacture’, it must be ‘novel’, it must ‘involve an inventive step’ and it must be ‘useful’.
Only the ‘true and first inventor and inventors’ of the invention may obtain a Patent for that invention. However, once obtained, the owner of a Patent can deal with the invention as they see fit – including granting another person or company the right to use it, usually in return for monetary compensation.
If Patent rights are infringed, the owner of a Patent can take legal action against the party responsible for the infringement.
Remedies
The primary remedies available for infringement of Intellectual Property rights include Compensatory Damages suffered as a result of the infringement, Injunctions and Account of Profits.
Injunctions are orders made by a Court for a person to do or not do something. If necessary, injunctions can be applied for before the final determination of a Court Proceeding, and on an urgent basis.
An order for Account of Profits requires the infringing party to pay to the owner of the Intellectual Property an amount equal to the profit they have derived from their unlawful use of the Intellectual Property. Generally speaking, a Plaintiff cannot ‘double-dip’ and obtain orders for both Compensatory Damages and Account of Profits – a decision must be made as to which is more appropriate and effective in the Plaintiff’s circumstances.
If you believe your Intellectual Property rights have been infringed, or another party has alleged that you have infringed their Intellectual Property rights, it is important that you obtain legal advice promptly.
Please call our office today on (03) 8658-0040 to have a free initial chat with one of our Litigation lawyers.
