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Are you about to launch your new business in Australia? If so, you may have goals to also reach an international customer base. It is important to consider your target market from early on. Will your goods be available online for purchase in multiple countries? Will you be providing an online service that customers around the world can use? If you intend to have global brand awareness, internationally valid intellectual property rights, such as trade marks, will be essential to retain and grow your business’ value. 

Copyright

In Australia, copyright is an automatic intellectual property right that attaches to the expression of creative and original material works. Copyright protection arises for the expression of artistic, literary, dramatic or musical works, as well as works like films, broadcasts, sound recordings and published editions. However, mere ideas do not have copyright protection. Rather, their expression in material form is what attracts copyright protection. 

Copyright is an intellectual property right that applies automatically in Australia. There is no formal copyright register in Australia where you register your copyright. However, this is not the case in every country around the world. 

For example, in the USA, it is encouraged to register your original works for copyright, to entitle you to defend your copyright in the case of infringement. 

Fortunately, Australia has copyright relations with many other countries across the world, through its membership of treaties such as the:

  • Berne Convention for the Protection of Literary and Artistic Works; and 
  • Universal Copyright Convention. 

This means that copyright in Australian works will be recognised in all member countries of the Berne Convention and will extend to 70 years after the author’s death. There are over 100 member countries of the Convention. 

Australian Trade Marks 

A trade mark can protect your business name, logo, slogan or anything else that differentiates you in the market and allows consumers to recognise your business. You will want a registered trade mark if you want exclusive rights to exploit and use your brand in connection with the type of goods and services you are providing in Australia. 

A trade mark can become a:

Once you have registered it, an Australian trade mark is valid for 10 years. You can renew it prior to expiration or within a six month grace period after expiration.

A registered trade mark is a statutory enforceable right. It entitles you to stop competitors from exploiting your trade mark for their benefit. You may, however, choose to license your trade mark to others for a fee, which can be a relatively fast and cheap way to: 

  • gain rapid brand recognition; 
  • increase your business’ value; and 
  • contribute greatly to the goodwill of your business. 

Importantly, however, having an Australian trade mark does not prevent competitors in other countries from registering a similar or identical trade mark in those countries. So, what can you do if you want to make sure no one else in your international target market can use your brand? 

International Trade Marks 

The best way to protect your brand internationally is to file for international registration of your trade marks, especially if you:

  • are selling online in those countries; or 
  • intend to have global brand recognition. 

In some cases, it might be essential to obtain a trade mark overseas before you can start selling to that market.

For example, you will need a valid trade mark to sell your goods on US Amazon.  

Depending on how many, and which, countries you will be targeting, you have two main options. These are set out below. 

Direct Trade Mark Applications

If you know you only want to register your trade mark in one or two countries (other than Australia), it is generally more cost effective and faster to file direct applications in each of the relevant countries. 

Keep in mind, though, that some countries require you to file additional documentation once your application is approved, which can incur further costs down the line. 

For example, the US Patents and Trademarks Office requires you to file a Statement of Use following approval of your trade mark application, in order to achieve registration. The Statement of Use is submitted to show your intended use of your trade mark in the US, or to prove your existing use in the US. However, you will not need to file a Statement of Use for your first five years of registration if you: 

  • already have a trade mark registered elsewhere in the world; or 
  • have an existing application on foot. 

Madrid Protocol Application 

Where you want to register your trade mark in at least three international countries, a Madrid Protocol Application is generally your best option. It can be simpler and cheaper than applying directly to each country of interest, as it allows you to file one application and have it recognised in any of the member countries to the Madrid Protocol that you designate. 

In order to apply through the Madrid Protocol, you will need to have a:

  • trade mark registered in Australia; or 
  • pending application on foot. 

You must apply through your ‘country of origin’. In other words, this is the country in which you first registered your trade mark. Therefore, it is a good idea to get your Australian application underway as soon as possible.

Another reason a Madrid Protocol Application can be more attractive is that if you lodge the Madrid Protocol Application within six months of lodging your Australian Application, you will secure the date you applied here in Australia as your priority date internationally as well. 

Even better, you will have a further six months from the date of filing your Madrid Protocol Application to subsequently add other member countries to the same application, rather than lodging a whole new application. 

Key Takeaways 

Building your business and your brand can be a time-consuming and costly process. Whilst copyright in creative expressions of work will often be recognised internationally, you must usually register trade marks in each country in which you want protection. Once you have developed your business’ intellectual property, you should protect it in all countries that you will be marketing your goods or services. To discuss your options, contact LegalVision’s intellectual property lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

Is copyright internationally recognised?

In Australia, copyright is an automatic intellectual property right. Australia has copyright relations with many other countries across the world. However, there are some countries where you will need to register your original works for copyright.

What is a trade mark?

A trade mark protects your business name, logo, slogan or anything else that differentiates your business. If you register a trade mark, you will have exclusive rights to exploit and use your brand in connection with the type of goods and services you are providing in Australia. 

Are Australian trade marks internationally recognised?

An Australian trade mark only offers protection in Australia. To obtain protection overseas, you can either apply to foreign countries directly or apply via the Madrid Protocol. 

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