Intellectual Property Lawyers Brisbane

How does intellectual property law work if you are based in Brisbane?

Intellectual property (IP) is the legal name for things you create with your mind that have commercial value: a brand name or logo, a product design, an invention, software, written or visual work, or a confidential recipe or process.

The registered rights are all federal. Trade marks fall under the Trade Marks Act 1995, patents under the Patents Act 1990 and registered designs under the Designs Act 2003, and all three are applied for through IP Australia, the Commonwealth government agency that examines and registers them. Copyright arises automatically under the Copyright Act 1968 as soon as a work is recorded in material form. No registration is needed.

Queensland law sits around the edges. Trade secrets and confidential information are not covered by any registration scheme. They are protected through contracts such as confidentiality agreements and employment terms, and through court-made rules about breach of confidence, and those claims can be brought in the Queensland courts. Section 16 of the Fair Trading Act 1989 (Qld) applies the Australian Consumer Law as a law of Queensland, which can matter where a competitor misleads customers into thinking it is connected with your business. Queensland's Limitation of Actions Act 1974 sets a six-year limit for most contract and non-injury tort claims, although that section does not apply directly to a claim for an injunction or other equitable relief, meaning a court-ordered remedy based on fairness.

I registered my business name with ASIC. Is my brand protected?

This is an easy mistake for a new business in Fortitude Valley, Newstead, West End or anywhere in inner Brisbane. A business name registered with ASIC (the Australian Securities and Investments Commission) lets you trade under a name that is not your own, and it stops someone else registering an identical or nearly identical business name. It does not give you ownership of the name.

ASIC's guidance is that only a trade mark can give you exclusive rights to use the name. A trade mark can be registered for things like words, logos, shapes and images. ASIC also warns that registering a business name that is someone else's registered trade mark may lead to legal problems. So a cafe, studio or software company can hold a valid business name and still run into a trade mark registered by a trader elsewhere in Australia.

The practical step is to search IP Australia's trade mark register before you commit to signage, packaging and a domain name. IP Australia says examination usually takes three to four months, accepted applications are then open to opposition for two months, and registration takes at least seven months in total. Once registered, protection runs for 10 years from the filing date and can be renewed.

Which court hears an intellectual property dispute in Brisbane?

Because the main IP statutes are federal, most infringement cases from Brisbane are filed in one of two federal courts. Both sit in the Harry Gibbs Commonwealth Law Courts Building at 119 North Quay. The pedestrian entrance is on Tank Street and the Federal Court's public counter is on level 6.

The Federal Court of Australia hears patent, trade mark, copyright and design disputes. The Federal Circuit and Family Court of Australia (Division 2) has jurisdiction, concurrent with the Federal Court, over civil disputes about copyright, trade marks, designs and plant breeder's rights. Patents are not on its list. Its practice direction says the first case management hearing takes place within three weeks of filing wherever possible, the judge will try to keep the final hearing to no more than three days, and the court is expected to use its power to cap the legal costs that can be recovered between the parties. Documents are lodged online through eLodgment where possible.

Queensland's own courts deal with disputes that are really about contracts or confidentiality. The Magistrates Court hears civil claims of $150,000 or less, the District Court hears claims from $150,000 to $750,000, and the Supreme Court hears claims above $750,000. The Supreme and District Courts in Brisbane sit at the QEII Courts of Law Complex, 415 George Street. A State Supreme Court is also a prescribed court under the Trade Marks Act 1995 and the Patents Act 1990.

Oppositions, which are disputes about whether a trade mark should be registered at all, are run through IP Australia rather than a Brisbane courtroom.

Someone is copying my brand or my work. What should I do first?

Start by gathering evidence before anything changes: dated screenshots, photographs, invoices, and records showing when you created or first used the material. Then confirm what you own. For a trade mark, patent or design, IP Australia says you need to show that you are the owner, or entitled to act for the owner, and that the right is still in force. A registered design must also be examined and certified before infringement proceedings can be brought.

The usual first formal step is a letter of demand. IP Australia's guidance is that an effective letter identifies your right, documents the infringing conduct, sets a specific timeframe to stop, and says what will happen if the demands are not met. It can stop the conduct without a court case, although IP Australia warns that a letter can also give the other side time to hide or destroy evidence.

Be careful with threats, and get advice before making demands. Section 129 of the Trade Marks Act 1995 lets a person aggrieved by a threat of infringement proceedings bring their own court action against the person who made the threat. Similar provisions appear in section 77 of the Designs Act 2003, section 128 of the Patents Act 1990 and section 202 of the Copyright Act 1968.

If harm is happening now, a court can be asked for an urgent interim injunction, a temporary order that stops the conduct until the case is heard properly. In the Division 2 court, mediation is encouraged and will often be ordered.

If you have received the letter, do not ignore it and do not admit anything in a hurry. Check whether the right is actually registered, what goods or services it covers, and whether you were using your name first.

Protecting ideas early: inner Brisbane startups, makers and creatives

Technology companies, design studios and fashion labels around Fortitude Valley can run into the same timing traps.

Patents and designs depend on novelty, meaning the idea must be new when you file. Keep an invention confidential until an application is lodged. A provisional patent application establishes your priority date but gives no patent protection by itself. You then have 12 months to file a standard or international application; if you do not, the provisional lapses and you can no longer claim its priority date.

For designs, there is a 12-month grace period after you first publish the design, available for disclosures made on or after 10 March 2022. IP Australia warns that relying on it exposes you to risk: if a third party starts using a substantially similar design during that period, you might not be able to take legal action against them.

Ownership is the other trap. Business Queensland's guidance is that you own IP created by employees in the course of their employment, but you do not own IP created by contractors or consultants unless your agreement with them says so. If a freelancer designed your logo or built your app, check the contract and consider a written assignment, which is a document transferring ownership.

How is Queensland different from other states?

For registered rights and copyright it is not: the Acts, IP Australia and the federal courts are the same in every state. The differences sit in state law. Queensland's civil court monetary limits, its Limitation of Actions Act 1974, its Fair Trading Act 1989 and its Office of Fair Trading apply here, while other states have their own courts, limits, fair trading legislation and regulators. If your dispute involves a contract, check whether it nominates the law and courts of a particular state, because that can affect where a confidentiality or licensing claim is run.