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When can I use the R and the TM symbols?

Be careful when using the R and the TM symbols on your trade marks. The R symbol can only be used for trade marks that have already been officially registered with IP Australia. Otherwise, it can be a criminal offence under the Trade Marks Act 1995 to use the R symbol on an unregistered mark.

In contrast, you can use the TM symbol on your unregistered trade marks. It serves to act as a notice to the public of your use of that trade mark as a badge of origin for the products and services to which they relate. What do ‘moral rights’ refer to?

The reference to moral rights appears in many IP licensing agreements, in particular where the agreement relates to copyright works. They are separate to the economic rights that an individual has over a copyright work. In many cases, the individual holding the moral rights may actually no longer be the owner of copyright in the work.

There is no process for registering the creation of moral rights. They automatically arise by virtue of the creation of the copyright work. Only individuals can have moral rights. The rights are personal to the creator of the copyright work and cannot be transferred, assigned or sold.

In essence, holders of moral rights have rights of attribution for the work they have created, the right not to have their work falsely attributed and not to have their work treated in a derogatory manner. Do I need permission to use copyright material?

When is it safe to use copyright material without the copyright owner’s permission? There are a number of provisions under the Copyright Act 1968 that deal with “fair dealing” as a defence to copyright infringement.

It is best to obtain permission unless you fall within the “fair dealing” provisions. The concept of fair dealing provides that there is no infringement of copyright if you use the copyright material for the purposes of:

research or study;

reporting news;

criticism or review;

parody or satire; or

professional advice by your legal advisor, patent attorney or trade marks attorney

Is my IP protected world wide?

Obtaining a registered trade mark, patent or design in Australia does not automatically provide international protection. These rights are territorial.

For trade marks, there is the Madrid Protocol which clients can use to obtain international protection in countries worldwide. For patents, an application may be made under the Patent Cooperation Treaty, referred to as the "PCT Application" for international protection.

There are other options open to trade mark and design owners who wish to obtain protection in the European Community. An application can be made for a "Community Trade Mark" under the Office of Harmonization in the Internal Market, based in Spain, to cover the European Community.

You should consider the relevant international markets for your goods and services and obtain advice about seeking protection in those countries.

For more information on matters relating to Intellectual Property, please contact Stacey Grose by email or phone on (03) 5333 8807.

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