Our readers may have already read our "Doing Business in Australia" series of articles posted before. Recently quite a few relevant facts and policies have been updated. Hence we have produced a new version. You will be able to receive the updated articles about "Doing Business in Australia" in the coming weeks.
Protection of Technology & Intellectual Property
The principal forms of intellectual property protection available in Australia are copyright, patents, designs and trade marks. All of these forms of protection are governed by legislation. The common law also provides remedies against a person passing off goods or services as those of another, as well as protection for confidential information and trade secrets. Australia is a member of the World Intellectual Property Organization (WIPO).
Copyright
Copyright protects all original literary, dramatic, musical and artistic works as well as sound recordings, films and broadcasts first published in Australia, or by an Australian. Copyright is regulated by the Copyright Act 1968 (Cth) (Copyright Act). There is no registration process required to obtain protection as copyright which satisfies the requirements under the Copyright Act will subsist automatically.
Literary, dramatic, musical or artistic works are protected under the Copyright Act for the duration of the life of the author plus 70 years.
Infringement occurs when a person does, or authorises the doing of, any of the acts described as ‘exclusive rights’. An infringing party can be subject to an injunction, restraining them from doing a particular act, or ordered to pay compensation to the injured party.
Patents
Registered patents in Australia are protected under the Patents Act 1990 (Cth). A patent is a temporary monopoly granted to a patentee over a device, substance, method or process which is deemed new and inventive. There are two types of patents in Australia:
a standard patent: holders of a standard patent have the exclusive right to exploit the patent for a period of 20 years
an innovation patent: a relatively fast, inexpensive protection option, which grants the holder the exclusive right to exploit the patent for a period of eight years.
Artistic creations, mathematical models, plans, schemes or other purely mental processes cannot be patented.
Patents are administered by IP Australia.
Designs
Designs are regulated by the Designs Act 2003 (Cth) and relate to the shape, configuration, pattern or ornamentation which, when applied to a product, gives the product a unique and distinctive appearance. Registration protects the design for five years, however it is possible to renew the registration for an additional five years. A registered owner has:
the exclusive right to use the design
the exclusive right to authorise others to use the design
the exclusive right to prevent others from using the design.
Protection is only for the appearance of the product and not how it works. Designs are administered by IP Australia.
Trade Marks
A trade mark can be a word, phrase, letter, number, sound, smell, shape, logo, picture, aspect of packaging or a combination and is used to distinguish goods and services. Registration of a trade mark is not compulsory, as there is protection against misrepresentation under the common law and consumer protection legislation.
A registered trade mark gives the owner the legal right to use, license or sell within Australia the goods and services for which the trade mark is registered and protected under the Trade Marks Act 1995 (Cth). Registered trade marks can be enforced against competitors who use identical, substantially identical or deceptively similar trade marks for the same goods and services, or similar goods or services if there is a likelihood of deception or confusion arising.
Australia joined the Madrid Protocol (Protocol) relating to international registration of trade marks on 11 July 2001. The Protocol provides Australians with an easy to use and cost effective mechanism to protect trade marks overseas and presents several advantages to applicants seeking protection in any of the contracting states.
The Protocol requires a single application only, in one language (English, Spanish or French), filed through the Trade Marks Office of the country of origin and offers protection in any of the Protocol member countries.
Trade marks are administered by IP Australia.
Domain Names
The .com.au second level domain (2LD) is the most commonly used to denote a business with an Australian connection.
Au Domain Administration Ltd (auDA) is the policy authority and industry self-regulatory body for the .au domain space. In addition to the .au domains, there are closed domains available only to the educational and government sectors and community geographic domains reserved for community groups in Australian locations.
The .com.au domain is for commercial purposes. Under the auDA policy, to be eligible for a domain name in the .com.au 2LD, registrants must be:
an Australian registered company
trading under a registered business name in any Australian state or territory; or an Australian partnership or sole trader
a foreign company licensed to trade in Australia
an owner of an Australian Registered Trade Mark
an applicant for an Australian Registered Trade Mark
an association incorporated in any Australian state or territory
an Australian commercial statutory body.
Domain names in the .com.au 2LD must also be:
an exact match, abbreviation or acronym of the registrant’s name or trade mark
otherwise closely and substantially connected to the registrant.
auDA administers and investigates complaints regarding domain name registrations including complaints that the registrant does not meet the eligibility requirements or where a .au domain is offered for sale.
IP Australia
IP Australia administers Australia’s intellectual property rights system, specifically patents, trade marks, designs and plant breeder’s rights. For more information visit www.ipaustralia.gov.au.
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To view our previous news for Chinese investors and various articles in relation with the topic ‘Doing business in Australia’, please click the button on the upper-right hand corner on our WeChat platform, and choose ‘view history’. The contents include:
Business set up in Australia, business structures,company administration, etc.
Background information of Australia, including Australian government, legal system, and business structures, etc.
Laws and regulations in various common areas, including protection of technology and intellectual property, anti-trust and consumer law, contract law, business migration, real property, public takeovers, and electronic commerce etc.
