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Frequently asked questions

Q. What is intellectual property?

A. “Intellectual property” is a term that refers to ownership of ideas. There are a number of common types of intellectual property, including your:

• reputation;
• trademarks;
• copyrighted works;
• plant species you have created;
• patented inventions; and
• registered designs.

To help you understand how intellectual property rights work, Snedden Hall & Gallop has prepared the graphic shown below, which sets out the different types of intellectual property. Notice how “confidential information” is different to everything else. This is because confidential information relates to all of the information that you need in your business, whether it can be protected under statute or not. It is very important to protect confidential information from your competitors.

Q. How can I protect my intellectual property?

A. The various types of intellectual property are protected in different ways. For example:

• Copyright is automatically protected by the Copyright Act, however it is a good idea to “assert” your ownership by marking it with the copyright symbol ,“©”, and the year and your name.
• Trademarks, designs and patents should all be registered with the government body, IP Australia, in order to enjoy the protection offered by its relevant pieces of legislation.
• All intellectual property and confidential information can be protected by a contract between you and whomever you are dealing with by asking that a Confidential Non-Disclosure Deed be signed before you start dealing with that person.

Q. Can I use a trademark without registering it?

A. Yes. A trademark is any “mark” you use to identify your business, whether it is registered or not.

You can assert your ownership of a trademark by placing “™” after it. However, you must not use the registered symbol, “®”, if your trademark is not registered, as this can only be applied to trademarks that have been registered with IP Australia.

If you do want to register your trademark, you must first determine whether it has been used by anyone else. This can be done by searching existing trademarks on the IP Australia website. Snedden Hall & Gallop can help you with this process, and with an online application for registration, if you wish.

Q. I have a great idea for a new invention. Can I tell my friends?

A. Yes, you can tell your friends or any other people that might be able to help you develop your idea. However, you should only do this if they have first signed a Confidential Non-Disclosure Deed.

This is very important for an invention because to register it as a patent, it must not be “public knowledge”. Therefore, if you have disclosed it to someone else, you might not be able to register it.

If you want to register your patent, you need to contact a patent attorney.

Q. Someone is using my works, what can I do?

A. The meaning of the term, “use” can include:

• adapt
• publish
• copy
• sell
• perform

Therefore, if you believe that another person has used your work without your permission, and you can establish that the work does belong to you, you may be able to seek:

• damages;
• an injunction to stop the person using it further; and/or
• an account of profits (that is, the person may be ordered to pay you the money that was made by using your works).

As you can imagine, this is a complex area of litigation and it is important to get legal advice early to ensure that your intellectual property is protected, and to act quickly against anyone who infringes it.

Q. I have been accused of “passing off” – what does that mean?

A. Passing Off is a common-law action that relates to using someone else’s reputation. This is often combined with an infringement of a trademark, or a breach of the prohibition against “misleading and deceptive conduct” in the Trade Practices Act.

If you have been accused of passing off, it is important to consider what circumstances exist that make the complainant think that you have used his or her reputation for your own benefit. There may be a perfectly reasonable explanation or defence against the claim, and seeking legal advice straight away may help prevent your being caught up in an expensive court action.

Q. I want to make money from my intellectual property. How can I do that?

A. Once you have established and, where necessary, registered ownership, of your intellectual property, you can start to make money from it. Ways of making money from your intellectual property can include:

• using it (selling it, performing it, adapting it, etc);
• selling the rights to someone else (often called an “assignment” or “transfer”); or
• licensing the rights to someone else.

If you are going to assign or license your intellectual property, the agreement by which you do that must be very carefully drafted to ensure that your rights are protected, that you can make some money from it, and to prevent things from going wrong.

Snedden Hall & Gallop believes that it is essential that you obtain reliable advice in order to avoid the potential hazards that could prevent you from capitalising on your hard work and creative ideas.