Leslie Massey
IP Australia helps Australians recognise and protect their ideas by administering IP rights for trade marks, patents, designs and plant breeder's rights. IP Australia provides a step-by-step process for applying for a trade mark or patent in Australia. Before applying, it is important to search existing IP rights to ensure your idea is new. If you are applying for a trade mark, you will need to list the owner of the trade mark correctly and provide ownership and contact details, a representation of your trade mark, a list of the goods and/or services your trade mark applies to, and payment details. If you are applying for a patent, you will need to decide if you are filing a standard, international or provisional application, and understand the associated costs. You can then fill out your application form, which takes around 15 minutes to file online.
| Characteristics | Values |
|---|---|
| Types of IP | Trade mark, patent, design right, plant breeder's right |
| Trade mark registration time | 3-4 months |
| Trade mark registration process | Set up an account with the online services portal, fill out the application form |
| Trade mark registration requirements | Owner's name and legal personality, ownership and contact details, representation of the trade mark, list of goods and services it applies to, payment details |
| Trade mark registration cautions | Scams relating to IP rights |
| Patent registration process | Decide if a provisional patent application is better, choose the type of application, understand the costs, fill out the application form |
| Patent registration requirements | Search patent databases to ensure the invention is new |
| Patent registration cautions | Scams relating to IP rights |
| IP protection in other countries | Obtain and manage IP protection for each country, consider applying before or soon after filing for protection in Australia, understand the complex process and timelines, costs, and legal requirements |
| IP protection in other countries – options | Apply directly to each country or through a single filing that reaches multiple countries, apply through the Paris Convention, apply through the Patent Cooperation Treaty (PCT) |
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What You'll Learn
How to apply for a trade mark
To apply for a trade mark in Australia, you must first create an account with the online services portal. You will then need to fill out an application form. The application process takes around 15 minutes to complete, and you can save your progress as you go.
It is important to list the owner of the trade mark correctly to avoid issues down the line. The owner must have legal personality, meaning they have rights and duties in law and can undertake legal actions. Depending on the type of owner, you will need to list the individual names, full company name, and trustee(s). For example, if John owns Amazing Windows, he can apply for a trade mark, but the business name itself cannot.
You will also need to provide ownership and contact details, a representation of your trade mark (e.g. an image of your logo), a list of the goods and/or services your trade mark applies to, and payment details.
After submitting your application, you will receive feedback, and you will have five business days to submit changes or formalise your application. It usually takes three to four months for your application to be examined. If your application is successful, it will be published for two months on the Australian Trade Mark Search, during which time anyone can oppose it. If there are no oppositions, or you overturn them, your trade mark will be successful.
It is important to note that there is an email scam circulating, which impersonates registered IP attorneys and pressures applicants into filing a trade mark. Be cautious of unexpected emails about IP rights. Obtaining IP protection in Australia does not automatically protect your trade mark in other countries. You will need to obtain IP protection for each country you intend to operate in. There are three ways to apply for trade mark protection overseas: directly through a country's intellectual property office, through an IP professional, or via the Paris Convention.
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How to apply for a patent
To apply for a patent in Australia, you must first check if your invention already exists. You can do this by searching existing patents to ensure your idea is new and not already registered. You can search patent databases, including international databases.
The patent process takes at least 6 months and costs a minimum of $100 for a provisional patent, and up to several thousand for full protection. There are also annual fees to consider. You can choose to file a standard, international (PCT), or provisional application. A provisional patent application allows you to secure a filing date for your invention, giving you 12 months to decide whether to proceed with a complete patent application.
Once you have decided on the type of application, you can prepare and submit your application online. You will need to provide a detailed description of your invention, formatted according to the guidelines. After submitting your application, you will receive a filing notice with the details of your application. Your patent will be advertised in the Australian Official Journal of Patents (AOJP) and published on the Australian Patent Search, at which point your invention becomes public knowledge, and the contents of your application are no longer confidential.
You can request an examination when you file your application or at any time after filing. This process comes with a fee, and you have up to five years from the filing date to request an examination and pay the fee, or your application will lapse. It can take up to 12 months for your application to be examined, but you can request an expedited examination if needed. If your application passes the examination, it will be accepted and published for three months in the AOJP and on the Australian Patent Search. This protection lasts for up to 20 years for standard patents and 25 years for pharmaceutical patents. You will need to pay regular renewal fees to maintain your patent protection.
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How to apply for IP overseas
Protecting your intellectual property (IP) in Australia doesn’t automatically protect it in other countries. You will need to obtain and manage your IP protection for each country that you intend to operate in.
Overseas IP protection is a complex process, and it's important to have a clear understanding of the steps you need to follow. Before applying, search existing IP rights to make sure your idea is new. You can do this by searching the existing registrations in all relevant countries.
There are two main ways to apply for patent protection overseas: directly through the country or regional IP office, or through the Patent Cooperation Treaty (PCT) administered by the World Intellectual Property Organization (WIPO). The PCT allows you to file a single international application that has the same effect as filing multiple single applications to each country.
There are three ways to apply for trade mark protection overseas: directly through a country’s intellectual property office, through the Madrid System, or through the United States Patent and Trademark Office (USPTO) via an IP professional. The Madrid System allows you to file trade mark applications in a number of countries through one application. Note that some countries may require you to apply via an IP professional.
It is recommended that you engage an IP attorney when applying for an IP right overseas. They can help you understand the country’s eligibility requirements and fees, lodge applications, and manage your IP rights once they're protected. In some countries, local laws may require you to work with an IP professional.
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How to avoid IP-related scams
To apply for IP Australia, you can apply for a trademark, patent, design right, or plant breeder's right. The process of applying for a trademark involves creating an account with the online services portal, filling out an application form, and submitting it. It usually takes three to four months for the application to be examined. If your application is successful, your trademark will be published for two months on the Australian Trade Mark Search, during which anyone can oppose it. If there are no oppositions, your trademark will be successful.
To avoid IP-related scams, here are some precautions you can take:
- Be cautious of unexpected emails or letters about IP rights, especially those pressuring you to file a trademark. IP Australia has warned about scams where individuals impersonate registered IP attorneys to mislead applicants.
- Scrutinize any notices or claims stating that your business name or domain name is infringing on a registered trademark. These notices often threaten legal action and may prompt you to engage an attorney or trademark attorney to handle the issue.
- Verify the credentials of attorneys and watch for red flags in trademark correspondence. Use the Trans-Tasman IP Attorneys Directory to search for registered patent or trademark attorneys in your area. Be cautious of urgent deadlines, large financial penalties, or similar trademarks being filed by other parties.
- Be wary of overseas correspondence informing you of potential trademark registration issues in other countries. While these may be legitimate, seek legal advice before agreeing to work with such firms, especially if you have no intention of using your trademark in that country.
- Train your staff to recognize false invoices and renewal notices. Stay updated with alerts and advisories published by IP Australia and the Institute of Patent and Trade Mark Attorneys (IPTA) to protect yourself from scammers.
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What to do if someone is using your IP
Intellectual property (IP) rights protect your ideas and underpin your business's competitive advantage. Infringement of your IP can impact the reputation and profitability of your product, business, and brand. If you notice someone using your IP without your permission, it is important to have a plan to manage the situation.
First, you need to make sure that infringement has taken place. What counts as infringement depends on the type of IP right involved. For example, someone may be infringing on your IP if they are using a logo very similar to your registered trademark to promote or sell their own products, or if they are copying your patented invention and selling it without your permission.
If someone is infringing on your IP, you should respond quickly and appropriately. Often, sending a letter of demand will stop the infringer and may avoid the need for further legal proceedings. You can seek legal advice if you need assistance in drafting and sending a letter of demand. If you come across someone applying for a similar trademark, patent, design, or plant variety as yours, you can request an examination or re-examination of their application and request the removal of a trademark for non-use.
To prevent infringement of your IP rights, you can display symbols to show that your IP is protected. For example, when you have a registered trademark, you can display the ® symbol to clearly communicate that it is registered. It is important to note that it is an offence to use this symbol before it is registered.
If you cannot contact or identify the infringer, you may need to engage an investigator or IP professional. If the infringer is outside Australia, you may need to work with lawyers in the relevant country to act on your behalf. Additionally, the World Intellectual Property Organization's (WIPO) Arbitration and Mediation Center offers mediation, arbitration, and expert determination to enable parties to settle their domestic or cross-border commercial disputes.
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Frequently asked questions
To apply for a trade mark in Australia, you need to set up an account with the IP Australia online services portal. You will then need to fill out an application form, providing ownership and contact details, a representation of your trade mark, a list of goods and/or services your trade mark applies to, and payment details.
It usually takes three to four months for your trade mark application to be examined. If your application is successful, it will be published for two months on the Australian Trade Mark Search. Anyone can oppose your trade mark during this time. If nobody opposes your trade mark, or you overturn these oppositions, your trade mark application will be successful.
To apply for a patent in Australia, you need to fill out an application form. You will need to decide if you are filing a standard, international (PCT) or provisional application, and understand the associated costs. You will also need to conduct a thorough search to make sure your invention hasn't already been created.
To apply for IP rights overseas, you need to obtain and manage your IP protection for each country that you intend to operate in. You can apply directly to each country or through a single filing that reaches multiple countries at the same time, such as through the Patent Cooperation Treaty (PCT).
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