TRADE MARKS

In today's commercial environment, marketing is considered a paramount requirement for business success. Hence even "start up" businesses spend significant amounts on research and/or creative services, resulting in the creation of their own marks. These marks may include any or any combination of a letter, word, name, signature, numeral, device, brand, heading, shape, colour sound or scent as well as other elements.

As a general rule, these sorts of marks are created in order to serve as a "badge of origin" making some sort of statement about the creator, producer or supplier of the goods or services rather than specifying an attribute which is of necessity inherent in goods of the particular type.

The registration of a trade mark under the provisions of the Trade Marks Act (C'th) protects the investment of businesses in their marks within the relevant "classes" of goods and services within which the marks are registered. This results because the use of the mark by other parties for goods and services in goods within the same "class" (or category) will result in a presumption of confusion or deception, even in circumstances where the brand is yet to obtain "traction", is relatively unknown, or where the intended activities for the brand are yet to commence.

The basic requirements for such marks are that they be distinctive, not misleading or deceptive (generally this situation arises due to their similarity to other unregistered marks in the market) and that they not be too similar to other registerd marks.

Smith Reid have clients who regularly require in the course of their business the registration of trade marks and we are able to act for clients in relation to these matters.

In addition we are knowledgeable about infringements and able to offer considered advice as to remedies available to aggreived trade mark registrants whose rights are being infringed by the activities of third parties by unauthorized use of the marks.

Registration in Australia is available under the Act, and by means of the Madrid convention, application may be made in other jurisdictions for the registration of trade marks. 

COPYRIGHT

The Copyright regime covers two main categories of protected original subject matter.

These are

• artistic literary musical and dramatic works (computer programs are considered literary works);
• other matter which covers sound and televisin, broadcasts, films, sound recordings & published editions of works

Whilst the author is the natural source of the work, and hence owner, in our day to day world of commerce these works are often produced under contractual arrangements which do (or should, for the protection of the interests of any principal) make it clear that the property in the materials belongs to the employer or person at whose instigation the works are created.

Copyright arises without registration and the inherent rights comprised can be dealt with as personal property hence may be assigned or licensed. (The management of "due diligence" and assignment in respect of ownership of intellectual property is a key activity involved in the sale and purchase of businesses or other undertakings).

Copyright legislation provides exclusive rights to the owner to do certain acts; unless the relevant acts are committed by others without authority actions for infringement do not lie i.e. it is necessary to determine the question of whether or not infringement has occurred as a result of literal interpretation of the legislation.

The most basic examples of breach of copyright relate to the unauthorized reproduction of work.

It has been said that "reproduction means copying, and does not include cases where an author or compiler produces a substantially similar result by independent work without copying" (Ladbroke (Football) Limited v William Hill (Football) Ltd. (1964) 1 WLR 273, 276.

Close resemblance to and actual use of copyright material as the source generally have to be established.

Other Forms of Intellectual Property

Other areas of intellectual property involve the following:-

• Patents under the  Patents Act (most commonly dealt with by patent attorneys);
• Designs registered under the Designs Act;
• Circuit layouts  under the Circuilt Layouts Act 1989 (Commonwealth) the rights concerning which arise upon creation of the layout, in a similar manner to which copyright arises, without the requirement for registration;
• Plant breeders rights under the Plant Breeder's Rights Act 1994 (C'th).