Intellectual Property
Introduction
Intellectual property is the area of law that includes ideas such as copyright, trademark and patents. It provides protection for a range of specialised rights. The modern day system is the product of a gradual growth of different rights and values. This process continues today and together with the onset of the information technology (IT) age, the law of intellectual property is of increasing relevance. Intellectual property law is the basis of many rights relating to IT use and the major feature of this area has been the application of trademarks.
What is the function of intellectual property law?
The basic justification for intellectual property law is twofold –
- The idea of ‘fairness’, as fair reward for intellectual effort (and)
- The need to encourage intellectual endeavour in the public interest in the hope of developing creative improvements.
Forms of intellectual property
A variety of different forms of intellectual property protection exist. Each method protects a different set of rights and it is important to distinguish them.
Copyright – The concept of copyright essentially includes the right to make a copy or reproduction of the copyright material including, literary, dramatic and artistic works and sound recordings, films, broadcasts and publications. In Australia copyright law is primarily regulated by the Copyright Act 1968 (Cth). Unlike trademarks and patents, no registration is necessary for the existence and maintenance of copyright. Infringement consists of reproducing or authorising the use of copies of work protected by copyright without the permission of the copyright owner.
Patents – A patent protects the rights to use or exploit an invention. Patents are granted by the crown and award the patentee the exclusive right to exploit and receive the benefits of an invention during a specified period of time in exchange for making the invention known to the public. Two forms of patent protection exist: a “standard” patent that lasts for 20 years and a “petty” patent that has duration of 12 months. In order to receive a patent for an invention an application must be lodged with the Patent Office. Infringement of a patent essentially occurs when somebody other than the patentee exploits the rights flowing from the patent.
Trademark – Trademarks are signs used to distinguish goods or services provided in the course of trade. They associate a company with goods that bear a particular sign, suggesting things such as the origin or quality of the goods or services in question. Those wishing to benefit from a trademark must submit an application for registration upon the Trade Marks Register. This serves a dual purpose. Information provided by trademarks assist purchasers to make informed choices regarding particular products and product quality may become closely associated with particular trademarks. Therefore the most important quality of a trademark is whether it is distinctive – this is a key feature for the registration and keeping of a trademark on the register. All Australian trademarks are published in the Australian Official Journal of Trademarks when registered by the Trade Marks Office.
Infringement is the major source of litigation surrounding trademarks. The Trade Marks Act 1995 (Cth) provides four separate forms of conduct that may constitute infringement. For an action to succeed, the registered owner’s interests must be adversely affected through an apparent connection between the registered owner and the alleged infringer’s goods or services.
A registered owner of a trademark has the right to obtain relief if the trademark has been infringed. Any person who uses an infringing trademark without authorisation may be sued for infringement. In terms of remedies, a court may grant relief for infringement of a trademark, which may include an injunction, damages or an account of profits.
Another important cause of litigation relates to use of a relevant trademark. Under the Trade Marks Act, use of a trademark is an essential requirement of remaining on the register. Importantly, the question of ownership often revolves around actual use of the relevant mark prior to an application for registration. Ownership may date from either from application for registration or first use depending upon which occurred earlier. Therefore, there is an advantage for applying for registration prior to actual use of the trademark. A person other than the trademark holder can lodge an application to have a trademark removed in the event of non-use.
Information Technology
Many facets of intellectual property have been recently overhauled to adapt to the ever -increasing use of digital and network technologies.
Copyright ownership rights have been extended to the medium of the Internet. This effectively means that owners of copyright works have an exclusive right to communicate to the public. Therefore a person may only feature copyright material on a website if they have prior permission from the copyright owner. Furthermore, in relation to Internet service providers (ISPs) and other data storage operators, it is also an infringement to authorise infringing actions.
The use of domain names is a novel area of intellectual property law. People have claimed that their trademarks have been used without permission as part of other people’s domain names, effectively associating their trademark with different goods or services. However the major concern is a common theme regarding trademarks generally, that is, the possibility that a person other than the owner of a trademark may use that trademark and divert business from the trademark owner.
Trademark applicants are eligible to register a domain name based on their Australian registered trademark. An applicant can register a domain name that is ‘closely and substantially connected’ to that applicant. Examples of this include:
- A product that the applicant manufactures or sells;
- A service that the applicant provides; or
- An event that the applicant organises.
Another growing area relates to use of competitors’ trademarks in key word advertising and website meta-tags. The law in this area remains unclear and clients are advised to exercise caution. Keyword advertising is targeted advertising through search engines on the Internet. A search engine is a research tool and as such is not a competitor attempting to advertise its own goods. Therefore use of trademarks may be outside the ambit of trade and unlikely to cause confusion regarding ownership or the origin of particular products.
The legitimate use of trademarks in website meta-tags is similarly unclear. Meta-tags are keywords describing the content of a website and are employed by search engines when trying to prioritise relevant websites. Meta-tags that incorporate a competitors trademark may constitute infringement. The relevant law in this area is limited and use of competitors trademarks in website meta-tags remains risky.
Clients are encouraged to take the following precautions:
- Limited the use of meta-tags to those which relate accurately to your company’s name, products and services;
- Ensure that meta-tags that incorporate a competitor’s name or trademark, or make reference to goods not actually provided on the website, are avoided.
Conclusion
Intellectual property law is essential to protect creative pursuits. Loss of revenue due to failure to ensure all relevant protection has been undertaken can be excessive. Our firm is equipped to answer all queries on this topic.
