INTRODUCTION TO IP Flashcards
1
Q
STATUTORY IP
A
- Copyright
- Patents
- Trade Marks
- Design
- Plant Breeders rights
- Geographical indications
2
Q
COMMON LAW IP
A
- Passing Off
Note statutory consumer protection laws - Confidential Information
3
Q
WHAT IS IP
A
- distinction between
- the physical object embodying the IP and
- the intangible IP itself: Pacific Film Labs v FCT (1970) – copyright in photo negatives as opposed to property in prints made from the negatives
- Can be dealt with in the same way as other forms of personal property
- sale, transfer, licensing
- passes in a will or on bankruptcy
- IP rights are negative in character - to stop others from unauthorised acts
- See JT International SA v Cth of Aust [2012] HCA 43
4
Q
GENERAL ABOUT COPYRIGHT
A
- Governed by Copyright Act 1968 (Cth)
- Generally - Protects categories of cultural, entertainment and informational productions
- original authorship that is expressed in material form
- Incl. other subject matter such as films, sound recordings
- Term (works) – 70 years after death of author
- Registration not required
5
Q
GENERAL PATENT
A
- Governed by Patents Act 1990 (Cth)
- Registration for novel and non-obvious inventions
- Term – 20 years
6
Q
GENERAL TRADEMARKS
A
- Governed by Trade Marks Act 1995 (Cth)
- Registration for words, symbols, colours, shapes and other “signs”
- Applied to goods or services to distinguish them from those of other traders
- Term – 10 years, renewable
7
Q
GENERAL DESIGN REGISTRATION
A
- Governed by Designs Act 2003 (Cth)
- Registration for new and distinctive overall appearance of a product, resulting from its visual features (whether functional or not)
- E.g. shape, configuration, pattern and ornamentation
- Term – 10 years
8
Q
IP LAW IN AUSTRALIA
A
- May be automatic, or require registration
- e.g. filing of application and compliance with formalities
- rights are not mutually exclusive
- can exist concurrently –
- different rights apply sequentially throughout a product life cycle – idea (confidential info) – copyright - patent - design - trade mark
9
Q
PURPOSE OF IP
A
- based on a balance between the interests of creators and those of users/the general public
- IP seeks to:
- provide incentive and reward to authors and inventors
- encourage dissemination of new ideas, and development of new technology
10
Q
RATIONALES FOR IP
A
- Consumer protection
- technology transfer
- balance of trade considerations
11
Q
ENFORCEMENT OPTIONS
A
- Administrative Tribunals:
- IP Australia administrative hearings in patent, trademark and design registration matters
- Copyright Tribunal on statutory licensing royalties
- Courts:
- Federal Court
- State and Territory Supreme Courts
Common law, contracts. - Federal Magistrates Court
since 2003 has jurisdiction to hear civil actions for copyright infringement under Pts V, VAA and IX of Copyright Act;
jurisdiction extended in 2012 to TM and design matters (following ACIP recommendation)
12
Q
CIVIL REMEDIES
A
- Injunctions (interlocutory and final)
- Damages (additional damages for flagrant and other infringements)
Could be difficult to determine amount. - account of profits
portion of the profits in relation to the improper gains made from using your invention. - Anton Piller orders
Ex-parte applications.
Need an order for goods to seized, etc. - Ancillary orders for delivery up or destruction
- Unjustifiable or groundless threats
13
Q
UNJUSTIFIABLE AND GROUNDLESS THREATS
A
- Unjustifiable and groundless threats – unlawful to threaten to initiate proceedings for infringement even though there is an honest belief that infringement is occurring
14
Q
SECTIONS FOR EACH ACT UNJUSTIFIABLE AND GROUNDLESS THREATS
A
- Copyright Act, s 202
- Patents Act, ss 128 – 132
- Trade Marks Act, s 129
- Designs Act 2003, ss 77 – 81
15
Q
CRIMINAL LIABILITY AND PENALTIES
A
- professional offences
- trademark offences
- copyright offences
Copyright Amendment Act introduced numerous indictable, summary and strict liability offences - performer’s rights offences
- designs offences
- plant breeder’s rights offences
