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I'm thinking of patenting an idea I had in mind. What are some steps I should take?
1.46K views
Melvin Wong, Founder at Lifefram
The first step is to file a provisional patent. Here's a free course on YTube on how to do it - https://www.youtube.com/playlist?list=PLviabXoRMqnfI29AMVSEdbTs7LDXVN517
The same method and law should apply in AUS.
But I'd advise against filing a prov or non-prov patent. I would rather build it first and test it out and see if it works and most of all, see if anyone would pay for it.
I filed a few and I think it was a big waste of money. I have one idea about ticketing that would kill ticket scalping, but never found the time to file it. In today's break-neck world, the best way to protect your ideas is to RUN with it. Build it, get it to market and build your business.
My mentor once was said, starting a business is like running a 100m sprint, you can't stop the rest from running, you just have to run FASTER!
Does copying statistics from a website or source constitute as plagiarism when making an infographic? Where does the law draw the line?
2.19K views
Thivaharan Thuraiappah, Principal | Xero Certified Advisor | Xero Add-ons Consultant at LALI Business Consulting Pty Ltd
I agree with Bridget here. As long as you reference your sources there should not be any issues. What you will be presenting in the infographics is the summary of your research or findings and giving reference to the sources of your research.
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Jacqui Pryor, Director at Mark My Words Trademark Services Pty Ltd
I may be a little biased, but yes I absolutely think a business should register its trademarks whether they've been used for many years or not. Several rights and advantages are awarded that you won't get other wise simply by using the trademark.
Plus - by registering you make it difficult for others to register (and therefore gain the right to use) similar logos in your same field of business products/services.
Is your business name and/or logo legally protected under a trademark? Why did you do it and when did it become necessary for you to do so?
1.5K views
James William, Content Writer at End of Lease Cleaning Experts Canberra
Trademarking a business name or logo is generally recommended when you want to protect your brand identity and prevent others from using similar names or logos that could cause confusion among consumers. Here are a few instances when it is important to consider trademarking:
Establishing brand recognition: If you want to build a strong brand identity and establish recognition for your business, trademarking your business name or logo can help ensure that others cannot use or imitate your brand.
Expanding your business: When you plan to expand your business into new markets or offer new products or services, trademark registration can provide legal protection and help prevent others from using your brand in those markets.
Preventing confusion and infringement: Registering a trademark helps protect against potential trademark infringement by other businesses. It allows you to take legal action if someone else uses a similar or identical name or logo that could create confusion among consumers.
The specific timing for trademark registration may vary depending on the jurisdiction and the nature of your business. In some countries, such as the United States, you can establish certain rights to your business name or logo simply by using it in commerce, even without formal registration. However, registering a trademark offers additional legal protection and advantages, such as the ability to bring a federal lawsuit and obtain nationwide protection.
It is generally advisable to consider trademark registration as early as possible, preferably before launching your business or introducing a new brand. This helps ensure that you secure the exclusive rights to your business name or logo and reduces the risk of someone else using a similar mark.
It's important to consult with a qualified intellectual property attorney or trademark professional to understand the specific requirements and processes for trademark registration in your jurisdiction, as laws and regulations may vary.
Jacqui Pryor, Director at Mark My Words Trademark Services Pty Ltd
A registered trademark, or even a pending trademark can be 'transferred' to a new owner, yes. This is done by assigning the rights from the current applicant/owner to the new. This can be done in several ways depending on the circumstances but commonly done by way of drafting a Deed of Assignment and filing this, along with the appropriate request, with the Trademarks Office who will then update the records to show the subsequent owner accordingly. There is no official/government fee. Fees could apply if you seek assistance in drafting of the Deed of Assignment.
So I have a business about an hour away from me who has copied my homepage copy, two of my blogs (word for word) and my social media package (same wording, same price).
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Steven Brown, Chairman at Etienne Lawyers
In Australia besides challenged people for breach of copyright you can also take action against someone who is misappropriating the look and feel of your website using section 18 of the Australian Consumer Law.
scThe scope of the prohibition of misleading and deceptive conduct
Section 18 Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL) and the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) has been interpreted expansively by the Courts and has thus moved into many fields of law that were not generally foreseen by its framers.
Section 18(1) states:
“A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”
Although most section 18 actions will consist of misrepresentations, it is erroneous to limit section 18 claims exclusively to circumstances that constitute some form of representation. Section 18 claims have been successfully made against exaggerated sales puffs (see General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164, 178 (Davies & Einfield JJ) and mere silence - Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [No.1] (1988) 39 FCR 546 and are actionable as misleading conduct.
The breadth of Section 18, can be seen from the following interpretations that have been given to it:
1. Intention is Irrelevant - Section 18 is concerned with the impact of the conduct, not upon the state of mind of the person engaging in the conduct.
2. Actual Deceptions is not Required - It is not necessary to prove that anyone is actually misled or deceived. All that is necessary is to establish that someone in the target would be likely to be misled or deceived.
3. A Part Truth is Misleading - A statement that contains some truth, but is incorrect in other respects, or those which are literally true but produce a false impression, can amount to misleading and deceptive conduct. For example:
“To announce an opera in which a named and famous prima-donna will appear and then to produce an unknown young lady bearing by chance the same name, would clearly be to mislead and deceive. The announcement would be literally true, but nonetheless, deceptive, and this is because it conveyed to others something more than the literal meaning which the words spelled out.” (This example was given in Hornsby Building Information Centre v Sydney Building Information Centre 1978] 35 FLR 372).
4. Silence can be Misleading or Deceptive - If an overall impression is created, and the person making the advertising statements knows that to say something or provide some further information may fix a false impression, then not to do so amounts to misleading and deceptive conduct.
The case law on whether silence is actionable has been inconsistent. Differing approaches have been taken. In Rhone – Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 the court held that failure to disclose certain information was not misleading and deceptive conduct. Whereas in the Henjo case the failure to disclose details was held to be misleading and deceptive conduct.
To demonstrate a breach of section 18 or section 29, it is not necessary that the impinged conduct actually lead a person into error; to engage in conduct that is likely to lead into error is sufficient. (See Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191.) However, in contract related actions it has still been held necessary that there has to be a cause or nexus between conduct and loss in order to claim remedies under the Trade Practices Act. (See Brown v Jam Factory Pty Ltd (1981) 53 FLR 340). Consequently, it is irrelevant whether ….. intended to mislead the Jacob Interests or that ……’s actions were neither dishonest nor negligent. Nevertheless, the conduct may still amount to misleading and deceptive conduct.
In deciding whether or not conduct is misleading, especially in establishing whether there was a cause or nexus between conduct and loss, the courts have had to grapple with the question of how much intelligence should be accorded to the subject of any impinged conduct. In the case of contractual representations, the capacity of the conduct to deceive or mislead is determined with reference to the characteristics of the actual recipient.
Principles Appliable to applying s 18
Yolarno Pty Ltd v TransGlobal Capital Pty Ltd & Ors (No 2) [2003] NSWSC 1004 (19 November 2003) Gzell J
42 The principles applicable to the operation of the Trade Practices Act 1974 (Cth), (s 18) are usefully set out by Hill J in Equity Access Pty Ltd v Westpac Banking Corporation (1989) 16 IPR 431 at 440-441.
43 First, in order for impugned conduct to be misleading or deceptive it must convey, in all the circumstances, a misrepresentation. That what was said at the September 1999 meeting amounted to a misrepresentation is established by the subsequent conduct of Mr Taylor and the difficulty TransGlobal experienced in obtaining anyone to underwrite the issue.
44 Secondly, there is no contravention of the Trade Practices Act 1974 (Cth), s 18(1) unless error or misconception results from the conduct of the corporation and not from other circumstances for which the corporation is not responsible. That requirement is satisfied in the instant circumstances. Mr Taylor was the managing director of TransGlobal.
45 Thirdly, conduct is likely to mislead or deceive if there is a real or not remote chance or possibility of misleading or deception regardless of whether that is more or less than 50%. The question whether conduct is misleading or deceptive or is likely to be so, is an objective one to be determined by the court itself. Evidence that persons of the relevant class were misled, although admissible, is not determinative although in some cases it may be highly persuasive. In light of the clear dichotomy between the representation and the fact, there can be no doubt that the conduct of Mr Taylor on behalf of TransGlobal was misleading or deceptive.
46 Fourthly, conduct of a corporation causing mere confusion or uncertainty in the sense that the public may be caused to wonder whether two products may have come from the same source is not necessarily co-extensive with misleading or deceptive conduct. That aspect has no application in the instant circumstances.
47 Fifthly, in certain cases the applicant must establish that it has acquired a relevant reputation in a name that has become distinctive of its business in a particular country or geographical area. That aspect, also, has no application in the instant circumstances.
48 Finally, the Trade Practices Act 1974 (Cth), s 18 is not confined to conduct that is intended to mislead or deceive and a corporation that acts honestly and reasonably may, nonetheless, engage in conduct that is likely to mislead or deceive. That aspect is also inapplicable in the instant circumstances.
My daughter has a business concept whilst the concept is not new in Australia the way it is offered is. We've done diligent research and there's nothing being offered in this way in Australia so how...
36 views
Jacqui Pryor, Director at Mark My Words Trademark Services Pty Ltd
Hi Anonymous,
A trade mark, by its mere definition, is a 'sign' you use or intend to use in relation to a product or service - most often the brand name or a logo that you might use to identify your product and distinguish it from similar goods or services of other businesses.
So, a concept or service itself is not something you register as a trade mark. Rather, if your daughter has coined a catchy name for the concept then that name might be registrable as a trade mark. Concepts/ideas themselves are tricky to protect. She might consider exploring patents further, however, a concept might not qualify. Patents are rights granted to devices, methods, substances and processes that are new, inventive and useful. 'New' often means it cannot be disclosed/published ANYWHERE before seeking the patent protection (unless a grace period applies).
For context, I am a registered trade marks attorney so can certainly help/share the ins and outs for trade marks, the above is provided as information only and is not advice. If the 'way' the concept will be provided/delivered is new and inventive, then I suggest it would be worth a consult with a patent attorney who can better advise whether the method of delivery is perhaps patentable.
Hope this helps :)
Lisa Ormenyessy, Founder at OMGhee
Hi Luis,
It really depends on what your idea is and if it can even be protected. You best bet would be to speak to an IP (intellectual property) expert. I am sure their first consult will be complimentary - there may even be IP experts here on Savvy.
Entrepreneur.com puts it well....
"It's natural to fear that your idea might be stolen. But you can't turn your vision into reality without the help of others. Sooner or later, you're going to want to ask an industry expert to evaluate your product or service. You're going to need to collaborate with a manufacturer or distributor. But patents cost thousands of dollars and take years to be issued. You can't afford to wait that long to start bringing your product to market."
Consider other options as well like NDA (non disclosure agreements), high security in your work environment (physical protection of your idea), Non compete clauses with your employees etc.
As always in these matters it is best to speak to an experty.
Cheers, Lisa
What will happen if I don't use a trademark for a period of time, e.g. will it be removed?
200 views
Jacqui Pryor, Director at Mark My Words Trademark Services Pty Ltd
Technically, yes - but I wouldn't encourage it!
Trademarks are vulnerable to removal if they are not used for a period of time, or, if at the time of filing the application the applicant had no intention to use the trademark in good faith.
A trademark may be removed on the above basis by application of a third party - so, if another person/business didn't think you were using your trademark any longer and wanted it off the database they could make an application seeking to remove it. (This would usually occur if someone was trying to register a similar trademark and yours was coming up as a problem for them). (So, technically you could continue to own a trademark without using it because it may be that no-one ever seeks to remove it).
In the above circumstances though, if you ARE still using your trademark or believe you deserve to keep your registration there are options to oppose 'removal applications' so this should be considered and assistance sought.
Tom Valcanis, Copywriter at I Sell Words
To add to Jacqui's great answer, a trademark does not grant you eligibilty to a .com.au domain name just because you have that phrase or word trademarked.
There is no "heirarchy of rights" in .com.au and .net.au. In other words, just because you have a trademark, a business name, was around first, etc. etc. is irrelevant. What matters is:
- You registered the domain name before anyone else
- You have a valid ABN
- The domain name is closely and substantially connected to the website (i.e. www.fish.com.au actually sells fish, is a business called Fish, or perhaps is a family name, e.g. Fish Plumbing.)
If you let the domain name lapse for whatever reason, you can not simply "get it back" because you have a trademark using that domain name. You can complain to auDA, but unless the registrant breaches the domain name eligibility and allocation rules, they likely won't delete it.
Would a trademark lawyer please walk through the steps for trademark application in Australia?
286 views
Jacqui Pryor, Director at Mark My Words Trademark Services Pty Ltd
I'd firstly like to clarify that you don't have to use a trademark lawyer in relation to your trademark matters; you can "DIY" (although not always recommended) or a specialist/consultant.
The first step I encourage clients take is having a trademark search conducted. This can rule out and/or advise on possible problems early on. (The registration process is lengthy so this can help avoid wasting time...) Some companies, including my own, will offer a basic search at no cost. Alternatively, more comprehensive searches are available for a fee.
If the search is clear, an application is filed with the trademarks office in Australia. At this time you must nominate goods/services of interest to you that your trademark will be used to identify. The filing of an application is your way of telling the government that you believe you are within your right to apply, and that you have an honest intent to use your trademark.
The government department must then examine the application and issue their results. A standard application will take around 4 months to be examined. If no problems are found the mark is accepted for registration. If problems are found a report is issued providing you a chance to address those issues.
After acceptance, the mark goes through a 3-month opposition period, where other people may object to the registration. Assuming no objections are filed in this time then the mark can be registered upon receipt of final fees.
Registration is valid for 10 years in Australia and can be renewed each 10 years.
Wendy Huang , Full Time Blogger and YouTuber at A Custom Blog in 4 Minutes
Thanks for the lovely answer Jacqui!
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