Intellectual property rights are intricate and tricky. And misinterpreting the law can prove to be a costly mistake for your business. In this post, we’re clearing up some common misconceptions about intellectual property in Australia. Let’s get started.

There is an infamous misconception that you can avoid infringement if your work is at least 25% different from the original. You should know that there is no certain percentage that will save you from getting sued by the original owner.

In terms of copyright, the creator can claim infringement of copyright if a substantial part of the work was copied. But it’s difficult to determine what that substantial part is. Substantiality is not the same as quantity. Even if you take a small part of the work, you can still be sued for copyright rights infringement.

The same applies to trade marks. You risk an infringement claim if your unregistered trade mark is substantially identical or deceptively similar to a registered trade mark for identical or similar goods and services. The test of deceptive similarity is not a side by side test but rather is based on recollection. So even if your trade mark is 25% different from the original, you still risk trade mark infringement in Australia.

Well, this one is not entirely false. Creators need to register copyright in many countries, but Australia is not one of them. If you meet certain criteria, you will automatically gain copyright protection. In Australia, you don’t even have any legal obligation to publish the material or put a copyright notice on it (but we do recommend it).

Here are the requirements to copyright your work:

Getting a trade mark registered in Australia doesn’t give you international protection. IP laws of a particular country are NOT applicable worldwide, but under copyright law, your copyright rights may be protected in other countries. If you want to operate your business overseas, you need to seek IP rights in each country. If your copyright rights are created under the laws of Berne Convention country, your copyright rights are protected in each of the other Berne Convention country, under the laws of that country.

Trade marks, copyrights, patents and registered designs are different types of IP and serve different purposes. Trade marks protect signs used to identify traders, design rights protect the appearance of things, patents protect ideas and copyright protects works (ie a literary, dramatic, artistic or musical work). You can trade mark a symbol, slogan or sign to distinguish your brand. But you cannot trade mark an idea.

As previously mentioned, securing IP rights in Australia doesn’t give you worldwide protection, unless the rights are copyright rights in Berne Convention countries. However, if someone overseas is using your trade mark in Australia (such as by selling online into Australia) you can take action against that use and enforce your Australian rights. Australia also protects Copyright rights with “rolling” orders against foreign websites where the purpose of the website is to infringe copyright rights. In addition a number of the social media providers will take down material once a complaint is raised.

  1. Changing Something By 25% is Enough to Avoid Infringement
  2. Copyright Must be Registered
    • You must reduce your work in material form. You cannot receive copyright protection for just an idea. Copyright protects the expression of an idea, not the idea itself.
    • Your work should be original and should be a result of your independent skill and effort.
    • You must be a resident or citizen of Australia, have some connection with Australia or one of the member states to the Berne Convention.
  3. IP Rights are Applicable Worldwide
  4. Trade Mark is Effective for Protecting Original Ideas
  5. You Can Do Nothing About International Infringement

Final Words

Did a competitor infringe on your patent? Do you want to trade mark a slogan for your brand? Use an experienced technology lawyer who specialises in IP rights to protect your IP.

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