Buchanan Law

A trade mark is a sign that distinguishes goods and services of one trader from another. Trade marks can be words, logos, signatures, letters, numerals, aspects of packaging, shapes, scents, colours and sounds.

Examples of some trade marks you may be aware of Virgin, Coca-Cola and Cadbury’s royal purple.

Registered trade marks are a valuable marketing tool and can be used to protect your distinctive signs and to prevent your competitors from imitating you and ‘free-riding’ on your reputation and goodwill.

When you register your trade mark, others are prevented from using a substantially identical or deceptively similar trade mark in relation to the goods and services for which the trade mark is registered.

Trade marks add market value to your products and services and are particularly useful where other forms of P protection are not available. For example, in the context of a new program or business process which may not be sufficiently inventive to warrant patent protection, a registered trade mark should be considered as part of an overall effective intellectual property strategy to protect ‘your patch’ from competitors.

• To learn more about trade marks, see our Trade Mark fact sheet
• To learn how Buchanan Law helps clients with their Trade Marks, visit our Trade Mark services section

Copyright protects the original expression of ideas.

Software Developers, Authors, Artists, Musicians, Architects, Engineers, Graphic Designers, Website Developers, Film Producers, Directors and television broadcasters are all examples of professions who rely on copyright laws to protect their original works from unauthorised copying and use.

Copyright protection is available for a broad range of works including software, drawings, manuscripts, musical and sound recordings, films and artistic works.

And while we often equate copyright with works of literary or artistic merit - copyright is also capable of existing in more mundane works such as databases, directories and customer and product lists.

Copyright is a bundle of rights enabling you to prevent others from copying your works, communicating them online and making adaptations of your works.

Copyright owners are empowered with broad commercialisation rights with the ability to authoris others to use, copy, make adaptations, further develop, publish, broadcast and communicate their copyright works online.

This is often done through licensing arrangements.

• To learn more about the Copyright services Buchanan Law offers, visit our IP Commercialisation page.

Moral rights are a separate category of rights enjoyed by individuals who create copyright works. Individuals (such as authors, software developers, artists, musicians and architects) can enforce their moral rights against people who for example:

• fail to attribute the creator’s name on the reproduction of a brochure, a copy of licensed software, in the performance of a musical work, or on a building constructed in accordance with an architect’s drawings;
• attribute authorship to a person who is not the actual creator of the relevant work; or
• modify or tamper with the creator’s works in a way which is prejudicial to the creator’s honour or reputation.

Properly managed, moral rights can add significant value to the reputation of designers, authors, software developers and other professionals in copyright sensitive industries.

Requiring your clients to attribute your name to reproductions of your work can be a very effective form of marketing and promotion.

Creators of copyright works are also able to rely upon their moral rights to prevent people from making changes to their works (eg to buildings, designs, literary publications etc) where the change would have a derogatory impact on the creator’s reputation.

A patent is a registered form of IP right available for particularly novel and inventive products, methods or processes.

Patents protect the use of ideas or information either in products or processes.

If your business involves the development, manufacture or use of novel products, processes and solutions then patents will represent a critical component of your effective IP strategy. It is imperative that you and your employees have an understanding of the mechanics of the registered patent system, the circumstances in which patent protection is obtainable and how patentable opportunities can so easily be lost!

Patents give you the exclusive right to exploit an invention, and to stop other people from using it.

Even if another person independently creates the same product or process (ie without copying the patented invention), then the owner of the patent can prevent the other person from using its independently developed product or process.

• To learn more about how Buchanan Law helps patent owners to achieve commercial success with their patents, visit our IP Commercialisation page.

Patents are an increasingly important aspect of the information technology industry. Patents are being granted in Australia and in other international jurisdictions for various web based applications, e-commerce schemes and in respect of new and novel software.

Before disclosing details of a new invention, product or process it is important that you first consider whether you wish to pursue patent protection. The ability to pursue a registered patent can be irretrievably lost if the invention is disclosed in certain circumstances.

The law provides protection for information which is confidential.

The law will protect your confidential information in specific circumstances. The best way to protect your confidential information is by taking care to ensure you only disclose your confidential information to people who have a need to know the information and who sign an appropriately drafted confidentiality agreement.

Confidential Information serves an important role as part of a broader IP protection and commercialisation strategy.

Preserving the secrecy of your confidential know how, business processes, systems and other proprietary information can be the difference between the success or failure of your business. You should treat and protect your confidential know how and business secrets as critical business assets. Your confidential information represents your competitive edge and the result of your hard work and financial investment.

After all, imagine if your software development tools and methodologies, product or price lists, manufacturing processes, training methods, design ideas or business systems found their way to your competitors or into the general public domain! The damage and cost to your business could be fatal.

There will often be circumstances where it will be more appropriate for your business to rely on the laws that protect confidential information than to pursue patent protection. For example, your particular invention may not be sufficiently novel or inventive to be patentable or, your company may consider keeping the details of the invention secret indefinitely will afford greater protection than disclosing the details in order to get the patent. Coca Cola for example has relied on preserving the secrecy of its cola syrup recipe in order to retain its market position.

Without an appropriate IP strategy and understanding of the inter-relationships between copyright, patents and confidential information then you face the risk of making your novel and hard earned ideas and trade secrets commercially available for lawful imitation by your competitors. We can help you by advising you in relation to confidentiality agreements (or non-disclosure agreements) with your employees, with potential customers and potential co-developers or investors.

The registered design system provides protection for features of shape, configuration, pattern and ornamentation applied to an article. Registered designs protect the appearance applied to certain products which are mass produced.

The design of the product must be new or original and should have a commercial or industrial use.

Protection afforded to Australian Designs was strengthened in 2004 with the introduction of new legislation.

There are important overlaps between the Australian copyright and design regimes in Australia. Copyright can in certain circumstances be lost if the relevant design to which the copyright relates has been industrially applied.

A registered design owner has exclusive rights to prevent others from copying its designs and also, to grant other people with the right to use and commercialise their designs.

An effective intellectual property strategy will ensure your creations are always adequately protected.

We can draft and file design applications for registration on your behalf and assist with a range of licensing documents relevant to the exploitation and commercialisation of your designs.

• To learn more about visit our IP Commercialisation page