On the 25th of January 2022, the Federal Government announced that the Aboriginal flag would be freely available for public use after it had acquired the copyright. The Aboriginal flag, designed by artist Harold Thomas in 1970, has become a globally recognised symbol of Indigenous culture. Mr Thomas held the copyright to the flag, which meant that its use was protected under Australian copyright law and only permitted by agreement with Mr Thomas. 

Having the ability to protect the use of your designs, products or artworks (collectively known as intellectual property) is beneficial to any business seeking to build its brand. By adequately protecting the use of your intellectual property, you can ensure that the public associates your brand with your business, which is vital to any business seeking to establish itself or expand. 

The primary way of protecting your intellectual property in Australia lies in copyright and trademark law.  Understanding the difference between trademark and copyright is the first step in understanding what measures you should take to protect your intellectual property. 

Copyright

The Copyright Act 1968 (Cth) is the primary source of copyright law in Australia. Copyright cannot be registered. Instead, it automatically arises when written or creative works like music, articles, websites and recordings are created. The creator of these works is typically the copyright holder and can bring infringement action against someone who communicates, reproduces or copies their work without their permission. Copyright generally lasts for the life of the creator, plus another 70 years. However, this period can vary depending on the type of works in question.

Trademark

A sign which operates as a distinctive mark can be trademarked. This can include packaging, shapes, labels, logos, words, sounds or devices which are distinctive from those of other brands. The Trade Marks Act 1995 (Cth) provides that the trademark owner is the person who uses the trademark first, but that by registering their trademark, they can grant another person the right to use the trademark throughout Australia. 

Trademarks can only be registered for 10 years. However, this period can be renewed indefinitely. 

The difference for businesses? 

Your business’ identity often arises from its branding. By registering the trademark of the various components of your branding, you ensure that you are recorded as the owner of this intellectual property on a publicly available database. This is important when it comes to bringing infringement action against someone who has used your trademark without your permission as in these circumstances, there is no need to prove that you are the owner of the trademark. 

On the other hand, bringing infringement action against someone who has breached your copyright can be more complex. As previously stated, copyright cannot be registered. This means you must first prove that you are the owner of the copyright before you can allege that it has been infringed upon. This can be a complicated process in cases where written or creative works were created some time ago. 

To conclude 

The intellectual property of your business can often become its most valuable asset. It is therefore imperative that you ensure it is protected from the early stages of setting up your business so that it is clear who the intellectual property belongs to, and future headaches are avoided.  To help you through this process, contactBG Legal & Advisory to speak with our experienced solicitors for an obligation free discussion.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice beforetaking any course of action.*