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We are a leading boutique commercial law firm based in Melbourne. Our lawyers are commercial law specialists, with many years of experience both in private practice and as in-house counsel for local corporate groups and international businesses.
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Your trade mark and IP questions answered
It is your brand – usually a word or logo uniquely identified with your business. Registering your trade mark on the official IP Australia register is ideal. But contrary to popular belief, a trade mark does not need to be registered for it to be protected by law.
As many a great lawyer has been known to say – it depends! You need to know which searches to do to find out if someone else is already using the same work or logo, or something similar. Clearscope Legal can help with the initial detective work. We know where to search, and what to look for. If you get it wrong at the early stages, you could wind up answering an infringement claim, and end up with a very costly re-brand down the track.
You may have rights under trademark infringement and “passing off”. A claim under the Australian Consumer Law could also be possible. Sometimes a legal letter of demand will do the trick. If not, a more comprehensive legal strategy might be needed including legal proceedings in the Federal Court, if there is enough at stake.
When someone creates something original, copyright law allows the creator to control how that copyright material is used. Examples of copyright material include books, songs, sound recordings, artworks and even software code.
The best way is to enter into a copyright contract. You could either sell your copyright outright (usually called a transfer or assignment of copyright), or you could give permission to use the copyright for a limited time, and in certain territories or markets (under a copyright licence).
A common first step is to send a legal letter. If the unauthorised use continues, you could consider legal proceedings. As with breaches of other intellectual property, misuse of your copyright material could give you a right to compensation for your loss, and you could even claim the profits made by the person who used your material without permission.
Sometimes a business can own valuable know-how or sensitive information, but which cannot be protected under trade mark law, patent, copyright or other intellectual property rights. A business could still protect this know-how or information by keeping it secret. They key is to have a rock-solid confidentiality agreement (sometimes called an “NDA” on “non-disclosure agreement”). Then always make sure that anyone that receives the secret information first signs the confidentiality agreement. Failing to do this could mean that the confidentiality is lost, and the information is no longer protected.