BusinessCommercialIntellectual Property

Frequently Asked Questions about Intellectual Property in Australia

1. What is IP?

Intellectual Property (also referred to as “IP”) is a form of intangible personal property that is created from knowledge or ideas. There are many forms of IP including copyright, patents, trademarks, designs, circuit layouts, performer’s rights and confidential information.

2. Do I own IP created by my employees and contractors?

If an employee is creating or developing IP in “the course of their employment” then this is generally considered to be owned by their employer. However, this general principle does not apply to independent contractors. It is important that when engaging an independent contractor, you have a written agreement in place setting out the ownership of IP to ensure that all relevant IP created by the independent contractor is owned by the Principal.

3. Can I sell my IP?

As IP is considered personal property, it can be sold, transferred and assigned. This can be done as a one-off sale of your IP or by a licence agreement which sets out a fee for use and the terms of use for an ongoing period or a set period of time.

4. How can I protect my IP?

Some IP rights come with automatic protection under Australian law. This includes, copyright, performer’s rights, moral rights, circuit layouts, confidential information and passing off. IP rights relating to patents, trade marks and plant breeder-s rights systems require registration to enable protection of these rights.

 

5. What do I do if someone uses my IP?

If someone is using your IP which doesn’t require registration (that is, confidential information, copyright etc), you can send that person a cease and desist letter. If you have IP that requires registration (that is, trademarks, patents etc), you will need to ensure that this IP is registered before you can try to enforce and breach of those IP rights.

It is always advisable to speak with a lawyer to confirm your IP rights and the best way of protecting them.

6. Do I own the IP I create for my customers / clients?

If you have been hired by a client to create IP such as logo design, web design, photography etc without a written agreement, you will be considered the author of the copyright in the material you create. It is a good idea to have a written agreement in place expressly setting out the ownership of IP to ensure that the IP specifically created for the client is transferred and any background or existing IP remains with you.

Cardillo Commercial Lawyers has a “Business-to-Business Bundle” where you’ll receive a Terms and Conditions including protection for your IP rights as well as other essential legal documents for an affordable price. Head to our Legal Document Bundles page for more information.

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