It is crucial that business people protect the intellectual property of their business, particularly where that intellectual property is licensed to them eg. as a franchisee.

In the age of e-commerce you can expect intellectual property issues to assume greater importance, particularly with the growth of internet based transactions. This is an area where the law is in a state of continual development trying to catch up with technological innovation.

Intellectual Property Rights to a business method or product can be protected in the following ways, but you should obtain specific advice in each particular case to ensure that your business structure is appropriate to protect your interests:

Registration of Business Name - it is necessary to register the Business Name in each state of Australia because registration is pursuant to the Business Names Act of each state, and registration is renewable annually. We recommend that before you register a business name you search to ensure that it is available as a domain name on the internet, as a trade mark, and as a company name if it is your intention is to develop your business into a recognised market brand.

Domain Name Registration - it is necessary to have the proposed domain name registered as a business name or trademark before you apply for registration of a domain name as your web site address. (www.securemydomain.com.au)

Incorporation of a Company - a measure of protection to a Business Name throughout Australia can be given by the Incorporation of a Company with a name incorporating the Business Name.

Copyright Act - the author or maker of any literary, dramatic, artistic or musical work is granted exclusive rights in relation to those works under this Act. The author or maker is referred to as the copyright owner, and has the exclusive right to multiply or make copies of subject matter which is protected by the Act.

We note that no registration is required to obtain the protection and that the owners rights come into existence immediately the work is written or made.

Designs Act - this Act establishes a system for the protection of registered industrial designs. The design must be registered to obtain the protection and the resulting monopoly protects the appearance of articles to which a distinctive shape, ornamentation or pattern can be given.

Trademark Act - while protection is available pursuant to the Act by way of registration, it should be noted that a Trademark is also protected at Common Law so that a trader can have an unregistered Trademark, or a trading style or get up in which he has developed a reputation, and that reputation will be protected by the Common Law action of passing off if the trader can show the alleged infringer has unfairly traded on his reputation.

Patents Act - this Act allows the creator of an invention that satisfies the necessary requirements to apply for a patent over that invention. The term of the standard patent is 20 years whilst the term for a petty patent is initially 12 months and is extendable to a maximum of 6 years from the date of the patent. The grant of a patent confers on the owner of the patent the exclusive right to exploit that invention. The owner of the patent may also enter into agreements to licence the invention to other parties.

Common Law - the common law allows the owner of a business method or product to protect its Intellectual Property Rights by an action for passing off against a third party who engages in misrepresentation to prospective customers which is calculated to and does in fact injure the business or goodwill of the owner of the business method or product.

Trade Practices Act - Section 52 of the Act provides that a corporation shall not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive. A third party attempting to take advantage of the Intellectual Property Rights of another party to a business method or product by falsely representing that its business method or product is the same as or similar to that of the other party may be in breach of that Section.