The registration of patent, trademark, industrial design and plant breeder rights are administered by IP Australia. Infringement, revocation and cancellation proceedings may only be initiated in a court of law. Australia is a signatory to all major international treaties, conventions and agreements in relation to IP.
The current patent law in Australia was amended in 2012 and came into effect on April 15, 2012. The main amendments were implemented on April 15, 2013. These include the revision of the patent law, which is to raise the standard of patent examination, especially for the improvement of creative judgment standards, in order to be consistent with other countries, such as the United States and China. In addition to provisional patent applications, Australia has a two-tier patent system—the 20-year standard patent (up to 25 years for pharmaceuticals) and the 8-year innovation patent.
A standard patent application must be examined prior to grant. The main substantive tests applied for patentability are absolute novelty and inventive step (non-obviousness). A standard patent can be granted well within 12 months of filing if processing is expedited at the request of the applicant.
For applications upon which examination was requested prior to April 15, 2013, all objections must be overcome within 21 months from the date of issue of the first examination report, with response fees accruing on a monthly basis for any response filed more than 12 months after the date of issue.
For applications upon which examination was requested after April 15, 2013, all objections must be overcome within 12 months from the date of issue of the first examination report.
An innovation patent is not examined prior to grant, with grant typically occurring shortly after filing. An innovation patent is not enforceable, however, until it has been examined at the request of the applicant and certified by IP Australia. Although absolute novelty is required, the threshold for inventiveness is lower than that required for a standard patent. The innovation patent is therefore suitable not only for inventions with a shorter life, but also those which may be considered obvious when compared to the prior art base. Unlike a standard patent, an innovation patent must have no more than 5 claims.
The Australian patent system provides a grace period for public disclosure of an invention, by or with the consent of the applicant or inventor, without affecting the validity of a subsequently granted patent provided that an Australian standard or innovation application is filed within 12 months of the earliest disclosure. Australia also has a general extension of time provision which allows for an extension of the time to do a relevant act if, because of an error or omission by a person (applicant or its agent) or circumstances beyond the control of the person concerned, the relevant act is not or cannot be done within that time.
Registrable trademarks in Australia include words, devices, labels, aspects of packaging as well as colors, sounds, shapes and scents, provided that they are distinctive or capable of becoming distinctive with use. Generally speaking, nontraditional trademarks are considered by IP Australia as lack distinctiveness unless used extensively in the marketplace.
Actual use is not required in order to file a trademark application; an intention to use the mark is sufficient. Multiclass filings are allowable and registration fees are payable per class.
The main substantive tests applied during examination are capacity to distinguish (non-descriptiveness) and conflict with trademarks already on the Register. A trademark registration has an initial term of 10 years from the date of application and may be renewed for additional 10 year periods. It is not required that actual use of the trademark be established for renewal. However, a registered trademark may be removed at the request of a third party if unused for a continuous period of 3 years.
A design registration has an initial five-year term and is renewable once only for a further five-year period. A design application will proceed to registration shortly after filing, provided that all formalities requirements are met. A registration is not enforceable, however, until it has been examined at the request of the applicant and certified by IP Australia. To be certified, the design must be new and distinctive, and it need not be ornate, and it can be of indefinite dimension. Use in Australia or a documentary publication anywhere in the world will normally deprive a design of novelty. Australian law also provides for a spare part exemption to infringement.
The current copyright law in Australia contains copyright amendments (online infringement) 2015 and previous amendments, which are amendments to the Copyright Act of 1968, which mainly regulate industrial designs, alternative dispute resolution, copyright and related rights (contiguous Rights), enforcement of intellectual property rights and related laws, and intellectual property regulatory agencies.
The original works of literary works and the originals of other works or other copyrighted items (such as works of art, audio-visual products and software) are entitled to compensation for damages, protections and rights provided by the Copyright Act 1968. Copyright is only granted if the work complies with the requirements of copyright law.
Copyright arises automatically on creation of a work and generally continues for 70 years after the death of the author. Australia is a member of the various international conventions on copyright and so affords reciprocal protection for copyright recognized in other member countries.
The Copyright Act has been through a number of reforms to address copyright issues arising in the ‘internet age’ and as a result:
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protects copyright owners from the unauthorized digitisation of their works and unauthorised communication of their works over the internet and other electronic means
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limits the liability of internet service providers and software manufacturers for copyright infringement by users of their facilities and software; and
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prohibits the making, sale, distribution and use of circumvention devices for the purpose of circumventing a technological protection measure.
Prohibition of unauthorised imports is subject to significant exceptions. The Copyright Act permits the parallel importation of overseas published books and sound recordings, as well as, more recently, electronic literary and music items and computer software.
Legislation on company names and trade names provides registration for company names and trade names. If an overseas company intends to set up a branch or subsidiary in Australia, it should submit an application to ensure that a particular company name and business name is available as soon as possible. The most common name infringement that an overseas company suffers is the registration of its business name or trademark as a "commercial size" in one or more states in Australia without its authorization. The use of pre-registration of commercial names can help resolve similar disputes.
According to the
Companies Act, any company must register its name with the Australian Securities Commission when doing business, and in accordance with the relevant provisions of the State Business Names Act, any company or individual must do business in a name other than its real name, which must be in the relevant authority. registered. The registration of the company name and trade name is based on the principle of “prior application, prior use” and no cross-reference to the federal trademark registration. A well-known name or trademark of a company abroad doesn’t make it well-reasoned for the company to register the name or trademark in Australia as a company name or trade name.
Anyone can submit an application for a company name or trade name to the relevant authorities. General applications will not be rejected unless the application is found to have one of the following:
1) Business size, the name to be registered is confused with other names already registered in Australia. In some states, if the business name applied for registration is very similar to the other names already registered, the application will be rejected.
2) The name of the company, the name of the application for registration is similar to the name already existing.
3) The name of the application is offensive, rude or prohibited for other reasons.
Whether it is a company name or a business name, once registered, it is difficult to eliminate it from registration. Both federal and state legislation stipulate that any action that misleads the use of the name, in order to prevent consumers from being deceived, will take legal action.
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