Lecture 3 - IP in detail Designs + others - VDIS10025 Intellectual Property and Design

Designs, Copyright & Trademarks and other Intellectual Property in Detail VDIS10025 Intellectual Property and Design

All Australian and International Intellectual Property information and application processes can be found on the IP Australia online portal at www.ipaustralia.gov.au !!DESIGNS - A design is a registration applied to an article determining the appearance of that article. The law embraces the shape, configuration, pattern or ornamentation of an article. It is possible to register a design and obtain protection for the external appearance of a product. In business it may be desirable to protect every new product which is produced by a manufacturer or supplier. As with Patents, the concept of newness is critical as the design must be new as of the date of application for registration.!


AUSTRALIAN DESIGN APPLICATION PROCEDURE!!The application for registration is lodged at the Designs Office through IP Australia together with drawings or photographs which illustrate the top, bottom and sides of the article. !!Within approximately 12 months, an Examiner conducts a search of previously registered designs to check whether the design is new and also whether all the formalities of the application procedure are complied with. Following an Examiner's report it is often necessary to lodge arguments differentiating the design from previously registered designs. !


Under the new Australian Designs Act (2003) the design initially remains in force for a period of 5 years from the registration date. Following payment of the renewal fee, the design remains in force for a further 5 years, making a total possible term of 10 years from the date of application. !!Although no opposition is available for designs, within a period of 11 months from the date of grant, third parties can advise the Designs office of material which is relevant to the newness of the design. This material will be considered by the Designs Office and the registration possibly not renewed. !


OBTAINING INTERNATIONAL DESIGN REGISTRATIONS!!Most countries have design laws although in many countries the term ”Industrial Model" is used. Most of these countries are members of the International Convention, the provisions of which enable a foreign design application to be lodged within 6 months of lodging an application in Australia for the same design. !!The corresponding foreign application, when examined by the foreign Office, has a priority date which is the date of lodgement of the Australian design application. Any foreign design applications, should be lodged before the corresponding Australian design registration is granted. !


COPYRIGHT !!In the Copyright Act in 2004 (latest version), it has been neither possible nor necessary to register copyright in Australia. Copyright exists automatically as soon as an original work has been reduced to a material form, eg. writing or storage in a computer memory from which it can be retrieved. !!Copyright protects a range of original materials such as literary works (books & poems), artistic and musical works and subject matter such as music, sound recordings and broadcasts. Computer software is now included in the definition of "literary work". The work may be novel and it is not necessary that it be of artistic merit. !


!There is an interrelationship between the Designs Act and the Copyright Act, which may remove copyright protection once a design is registered under the Designs Act or once articles to which a "corresponding design" is applied are made and sold or hired in Australia or elsewhere. !!The basic purpose of copyright is to reward creative enterprise by protecting copyright owners from the unauthorised copying of their works.!


Australian Copyright law is administered by the Attorney General’s Department and has very important industrial and commercial ramifications. !!Where there is an original drawing, such as an engineering drawing, of an article then, provided such an article has not been sold, the copyright in the drawing may be regarded as extended to any article (no matter what its size or material of construction may be) which is a three-dimensional manifestation of the drawing. !


Depending on the material, copyright for literary, dramatic, musical and artistic works generally lasts 70 years from the year of the author's death or from the year of first publication after the author's death. Copyright for films and sound recordings lasts 70 years from their publication and for broadcasts. !


Copyright (unlike patents and registered designs), suffers from the problem that it is necessary, in order to show infringement, to prove that actual copying took place. Therefore, copyright provides no protection against subsequent independent development of the same or substantially similar works. !!Australia is a member of both the Berne Convention and the Universal Convention regarding copyright and most countries of the world belong to one or both of the Conventions. !


In order to draw the attention of others to your own rights (and to sue for infringement in certain overseas countries), it is desirable to mark all copyright material with the Copyright symbol ©, the name of the person or organisation who owns the copyright, and the date of first publication of the work concerned. !!Copyright may be assigned from the creator of the work to another, but any such assignment must be in writing. In some countries, such as the USA, it is possible to register copyright and there may be certain advantages in doing so.!!


TRADEMARKS!!A trade mark is a brand, a type of "badge" which is used in relation to products, goods or services to indicate the source or trade connection from which the goods or services come. A trade mark may take many forms including invented words such as Vegemite; a logo such as the stylised T device of Telstra or the Qantas flying Kangaroo; the facsimile of the face of Dick Smith; the stripes on the sides of running shoes made by Adidas; or the signature of the original Mr Johnnie Walker appearing on the whiskey bottle label. Other trade marks include the well-known black and white pattern used for wrapping paper and by David Jones.!! !


The Australian Trademarks Act provides that a trademark is registerable if it contains or consists of the name of a person represented in a special or particular manner; the signature of the applicant or his predecessor in business; an invented word; a word not having a direct reference to the character or quality of the goods or services in question and not being according to its ordinary meaning a geographical name or a surname; or any other distinctive mark.!!


A trademark application is lodged at the TradeMarks Office through the online portal www.ipaustralia.gov.au specifying the trademark, the owner of the trade mark and the goods or services in respect of which the trade mark is used or intended to be used. !!The trademarks for goods or services are arranged in 42 classes according to an international classification system and each application must relate to goods or services in one class only. Where it is desired to obtain protection in respect of goods and services which fall into different classes, then it is necessary to lodge a separate application for each class concerned. !!


After the application is examined and the Examiner conducts a search to see whether there are any prior registrations or earlier applications for conflicting trade marks. The Examiner will consider whether the trade mark complies with the rules regarding registrability, and whether the application specifies goods or services in more than one class. !!For the registration to be maintained in force it must be renewed, 10 years from the date of application and thereafter every 10 years. Registered trade marks may be sold or assigned with or without the goodwill of the business concerned. Trademarks must be used to avoid removal from the register on the grounds of “Non Use”.!


!OBTAINING TRADE MARK REGISTRATIONS OVERSEAS!!Most countries in the world have a system for registration of trade marks, although not all countries permit registrations in respect of services. It is necessary to lodge a separate application in each country where protection is desired or in many countries through the Madrid protocol which is administered by WIPO. International searches are desirable prior to international registration. International Trademark registrations last for 10 years and can be renewed.!


Although there is no requirement under the Trade Marks Act to identify a trade mark, on labelling or packaging, it is strongly advisable to use the TRADEMARK™ symbol as it assists in establishing the identity of the trade marks and places others on notice of the proprietor's claim to rights in the trade mark. !!It is always advisable for a trade mark to be used together with a generic description. This may prevent the trade mark becoming generic or descriptive term at a later time such as the terms; THERMOS, HOOVER and REBOCKS!


Other IP connected rights and protection include Business Names, Company names, Domain names and protection by Australian consumer protection acts and similar acts in other countries. BUSINESS AND COMPANY NAMES – Company names are registered by ASIC in Australia when a company is incorporated. !!Where a sole trader, partnership or company carries on business under a name other than its own, it must be registered. Unlike trade mark registrations, a business name registration does not, of itself, confer any proprietary rights to the name and nor does the registration confer any rights to sue for "infringement” however ASIC endeavours to ensure each business has a unique name. !


DOMAIN NAMES – Domain names are unique internet identifiers and are unique in their appropriation and use. Their registration is complex through multiple registries in multiple countries. !!All domain names and registrant information in top level domains of the Domain Name System (DNS) allow third party entities to request administrative control of a domain name. Most registries operate on the top-level and second-level of the DNS. A registry operator, sometimes called a Network Information Centre (NIC) maintains all administrative data of the domain and generates a zone file which contains the addresses of the nameservers for each domain.!


Each registrar is an organisation that manages the registration of domain names within the domains for which it is responsible, controls the policies of domain name allocation, and technically operates its domain. It may also fulfil the function of a domain name Registrar, or may delegate that function to other entities.!!Domain names are managed under a hierarchy headed by the Internet Assigned Numbers Authority (IANA), which manages the top of the DNS tree by administrating the data in the name servers.!


IANA also operates the international registry for intergovernmental organizations, the Advanced Research Projects Agency (ARPA) zone for protocol administration purposes, and other critical zones such as root-servers.net. IANA also delegates all other domain name authority to other domain name registries. Country Code Top Level Domains (ccTLD) are delegated by IANA to usually private national registries.!!Domian names have become valuable Intellectual Property and many organisations have multiple domain names in different domains to protect their online business environment.!


Australian Competition and Consumer Act !The Australian Competition and Consumer Act (2010) was enacted to protect the consumer by imposing an obligation on advertisers; companies or individuals. Some examples of areas of conflict that the act covers that can protect an organisations IP rights are:!• False representations that goods and services are of a particular standard, quality, grade, style or model when they are not;!• Any advertising enticing consumers through misleading or deceptive claims;!• Representation that goods and services have approved performance, uses or benefits when they do not.!


Lecture 3 - IP in detail Designs + others - VDIS10025 Intellectual Property and Design

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Transcript of Lecture 3 - IP in detail Designs + others - VDIS10025 Intellectual Property and Design