Intellectual property rights are protected by laws and regulations in Australia. IP Australia receives and process applications for registration of intellectual property rights, conducts hearings and decides on disputed matters relating to the granting or denial of Australian intellectual property rights.

Australia is a member of the Patent Cooperation Treaty (PCT) and Australia joined the Madrid Protocol relating to international registration of trade marks on 11 July 2001. The PCT allows you to make a patent application designating the member countries of the Treaty within which you intend to seek patents. The Madrid Protocol provides Australians with a simpler and less expensive way of seeking trade mark protection overseas and presents several advantages to applicants seeking protection in any of the contracting states.

It is important to note that only copyright and registered intellectual property (i.e., trademarks, patents and designs) give rise to intellectual property rights, which can be enforced in Australia (e.g., to stop someone else from using the same intellectual property for their own business purposes).

The registration of a company name with the Australian Securities and Investments Commission (ASIC) does not give rise to any intellectual property right in such name. It merely prevents someone else from registering the exact same company name but will not stop them from registering the exact same name as a business name or as a trademark.

Similarly, the registration of a business name with the Fair Trading Department does not give rise to any intellectual property right in such name. Sole traders often register a business name to trade under and companies may also decide to trade under one or several different business names in order to promote their business activities to their customers via one or several specific names. In all cases, the registration of a business name will only prevent someone else from using the exact same name to register a company or another business name for their own business purposes. It will not however prevent them from registering the exact same name as a trademark, thereby gaining intellectual property right in the name and a much stronger protection of their right to use it and stop others from doing so.

The type of intellectual property right and level of protection you require will depend upon your chosen field of activities. As the intellectual property registration process is long and based on the principle of anteriority (‘first in, best served’), it is strongly advisable not to delay such process as soon as the decision is made to register intellectual property in Australia.

We can guide you in your decision-making process.

Follow the link to IP Australia for more information about IP Australia.