Andrew O'Donnell

Myth 1: Registration is a pre-requisite for copyright protection.

Fact: Copyright arises automatically as soon as a ‘work’ is recorded in material form – you do not have to do anything to obtain copyright protection for a ‘work’ that you create.


Myth 2: Copyright protection lasts forever.

Fact: The duration of copyright protection depends on the type of ‘work’. Generally in Australia, copyright protection is for the life of the author plus 50 years.


Myth 3: Employees are the owners of any works they create.

Fact: Employers own copyright works created by an employee in the course of their employment.


Myth 4: Copyright in “works” created by consultants under contract is owned by the customer.

Fact: Copyright in works created by a consultant is owned by the consultant.


Myth 5: If you never copy more than 10% of a work, you will not infringe copyright.

Fact: Copying only a small portion of a work may still infringe copyright.


Myth 6: Materials on the internet are freely available for anyone to download and use for any purpose.

Fact: Posting materials on a website does not necessarily mean that visitors to the site have the right to use the materials for commercial purposes.


Myth 7: Anyone may link their website to anyone else’s site.

Fact: Linking without permission is potentially risky and may infringe copyright or trade mark depending on the circumstances of the link. It is recommended to seek permission before linking to another website.


Myth 8: A trade mark cannot be protected if it is not registered.

Fact: Regular documented use of a trade mark is one of the simplest ways of protecting it, although registration as a trade mark under the Commonwealth from Trade Marks Act 1995 is preferable, since the remedies for infringement are more cost effective and comprehensive.


Myth 9: Once you have registered a trade mark it does not matter whether you use it or not.

Fact: All trade marks, whether registered or unregistered, are at risk if they are not used. Trade marks may be removed from the register if they are not used.


Myth 10: Once a trademark is registered it is quite safe to use that mark in any manner you like.

Fact: Trade marks must be used in the precise manner in which it is registered. Improper use, or use other than as a trade mark, may threaten the mark’s existence.


Myth 11: No one else can use a business name if it is registered on the Business Names Register.

Fact: No one else can use the exact same form of a name, as a business name, if it is registered on the Business Names Register because the registration body would not register two identical business names. However, a minor variation in the form of a registered business name will generally allow the subsequent registration.


Myth 12: Only words or graphic representations can be registered as trademarks.

Fact: Apart from names and logos, a colour, shape, sound or smell can also be registered as a trade mark.


Myth 13: Trademarks represented on an Australian based website would not infringe trade marks in another country.

Fact: The internet is borderless and trade marks on a website which can be viewed overseas, are potentially subject to the law of the place in which they are viewed.


Myth 14: A registered domain name will overcome a registered trade mark.

Fact: A domain name provides no ownership in a name – it is only a means of internet navigation.


Myth 15: Someone has a trade mark registration for a particular word so I cannot use that word as a trade mark for other classes of goods and services.

Fact: A trade mark registration is limited to the goods or services specified in the application. To minimise your risk of trade mark infringement, it is prudent to determine the scope of the third party trade registration before using the same word as your trade mark. You can do this quite easily by searching IP Australia’s trade marks database.


For more information about intellectual property specific to your situation, contact me on (02) 9908 9888.