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</form>Text Content
EN | 中文
*
* Services
* Patent Services
* * * Our Patent Services
Learn how to patent an idea and how you can protect your valuable
idea to secure your business.
* * * How to patent
* Patent benefits
* * International Patent Process
* Stage 1: Provisional patent applications
* Stage 2: International-type patent search
* Stage 3: PCT International patent applications
* Stage 4: National phase patent applications
* * Australian patent process
* Filing an Australian patent application
* Patent examination and publication
* Patent opposition process and acceptance
* Patent grant and renewal
* * * Patent search
* International patent search
* International-type search
* Australian patent search
* Freedom-to-operate patent search
* * Patent oppositions & disputes
* Patent opposition
* Patent litigation
* * IP Strategy
* IP Audit
* IP Valuation
* *
* * Other patent services
* Innovation patents
* * * Registered designs
* Registered design application
* Design disputes
* Patent Specialisations
* * * Patenting in your industry
Baxter IP has patent attorneys who have specialist expertise in a
variety of industries and technology specialisations.
* * * * Chemical, biotech & pharmaceutical patents
* Civil engineering & construction patents
* Consumer product patents
* Electrical engineering & electronics patents
* Fintech patents
* Mechanical engineering & mining patents
* Medical device patents
* Physics & optical engineering patents
* Software, apps & computer patents
* Trade Mark Services
* * * Our Trade Mark Services
We explain how to apply for a trade mark in Australia so you
can protect your trade mark to secure your brand’s future.
* * * How to trade mark
* Brand name vs trade mark
* Choosing a brand name
* Trade mark registration benefits
* The role of Australian trade mark attorneys
* Domain names and trade marks
* Hashtags and trade marks
* Signs that cannot be protected as a trade mark
* * Trade mark preparation
* Types of trade marks
* Special types of trade marks
* Classes of goods and/or services
* Trade mark search
* * Trade mark registration process
* Australian trade mark application
* Trade mark examination
* Trade mark acceptance
* Trade mark publication
* Trade mark maintenance
* Trade mark amendment
* Trade mark renewal
* * * International trade mark application
* Madrid Protocol international trade mark application
* International trade mark management and renewal
* Trade marks in other countries
* * Trade mark oppositions & disputes
* Trade mark opposition
* Grounds for trade mark opposition
* Evidence of Use preparation
* Other types of oppositions
* Trade mark disputes
* Trade mark infringement
* Trade mark enforcement and defence
* Trade mark litigation
*
* IP Oppositions & Disputes
* * * IP Oppositions & Disputes
With their extensive expertise in contentious matters, our patent and
trade mark attorneys are well-equipped to handle your IP dispute and
opposition matters.
* * * Patent oppositions & disputes
* Patent opposition
* Patent litigation
* * Trade mark oppositions & disputes
* Trade mark opposition
* Grounds for trade mark opposition
* Evidence of Use preparation
* Other types of oppositions
* Trade mark disputes
* Trade mark infringement
* Trade mark enforcement and defence
* Trade mark litigation
*
* * * Design disputes
* BIP Partners
* * * Our Partners
The Baxter IP team is trained in capital raising, licensing and
government grants and can help connect you with BIP Capital Partners.
* * * * BIP Capital Partners
* IP Attorneys
* IP Attorneys
* * * Our patent & trade mark attorneys
The IP attorneys at Baxter IP in Sydney or Melbourne can help secure
your intellectual property. You will be matched with the IP attorney
best suited to your needs.
* * * Sydney Team
* Chris Baxter
* Dr Qi Zhang
* Naleesha Niranjan
* Julia Caunt
* Andrew Balis
* Joanne Li
* Dr Richard Grant
* * Melbourne Team
* Martin Earley
* Warren Chandler
* Dr Seán Klinkradt
* Jarrod Lichtblau
* Willem du Preez
* * About
* The role of Australian patent attorneys
* How to choose an Australian patent attorney
* How to become a patent attorney
* The role of Australian trade mark attorneys
* How to become a trade mark attorney
* Patent Attorneys
* * * Our patent attorneys
A Sydney patent attorney or Melbourne patent attorney will be matched
with you based on technology expertise to help you file a patent in
your field.
* * * Sydney Team
* Chris Baxter
* Dr Qi Zhang
* Naleesha Niranjan
* Andrew Balis
* Dr Richard Grant
* * Melbourne Team
* Martin Earley
* Warren Chandler
* Dr Seán Klinkradt
* Willem du Preez
* * About
* The role of Australian patent attorneys
* How to choose an Australian patent attorney
* How to become a patent attorney
* Trade Mark Attorneys
* * * Our trade mark attorneys
A trade mark attorney from Baxter IP based in Sydney or Melbourne can
assist you with trade mark applications, trade mark searches or trade
mark enforcement.
* * * Sydney Team
* Chris Baxter
* Dr Qi Zhang
* Naleesha Niranjan
* Julia Caunt
* Andrew Balis
* Joanne Li
* * Melbourne Team
* Martin Earley
* Warren Chandler
* Jarrod Lichtblau
* Willem du Preez
* * About
* The role of Australian trade mark attorneys
* How to become a trade mark attorney
* Commercial Counsel
* * * Commercial counsel
After Baxter IP has your intellectual property covered, know what to
do with your IP next by seeking advice from our affiliate practices.
* * * * Dr John Baxter
* Living Our Values
* Living Our Values
* * * Living our values
At the heart of Baxter IP is a group of people who really care about
innovators, whether mum and dad entrepreneurs or the in-house teams
of multinationals, and who are motivated to give back to the
community.
* * * About Us
* Our values
* Our philosophy
* Baxter IP Capital Partners
* Baxter IP Scholarship
* Awards & Recognition
* Client testimonials
* In the media
* * Follow Us
* Facebook
* LinkedIn
* Twitter
* YouTube
* Join Us
* * * Join us
IP attorney careers as a patent attorney or trade mark attorney
provide a fantastic way to support emerging businesses.
* * * * IP careers
* The role of Australian patent attorneys
* How to become a patent attorney
* The role of Australian trade mark attorneys
* How to become a trade mark attorney
* IP News
* IP News
* * * IP Front™ – Intellectual Property News
The latest IP news across patents and trade marks law and practice by
Baxter IP.
* * * Browse by category
* Case Studies
* Client Success Stories
* Commercialisation
* Designs
* Domain Names
* Events
* Featurettes
* Firm News
* Innovation Patents
* IP Strategy
* IP Valuation
* Oppositions & Disputes
* Patents
* Technology
* Trade Marks
* Resources
* * * IP Information & Tools
A collection of IP-related information and tools provided by Baxter
IP, Patent & Trade Mark Attorneys.
* *
* * * * IP Glossary
* IP FAQs
* Patent Process Flowcharts
* Trade Mark Process Flowcharts
* Videos
* Top Startups 2018
* Contact
* Contact Us
* * * Our patent & trade mark attorney offices
Between 2007 and 2019, Baxter IP established a team of industry
specialist IP attorneys with offices in Sydney, Melbourne, and
Brisbane.
* * * * Sydney Patent & Trade Mark Office
* Melbourne Patent & Trade Mark Office
* Brisbane Patent & Trade Mark Office
* Search
* For Associates
* Call Us
* Email Us
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1.
2. Resources
3. Frequently Asked Questions
FREQUENTLY ASKED QUESTIONS
GENERAL
WHERE IS YOUR OFFICE LOCATED? (EITHER FOR SYDNEY OR MELBOURNE)
Our offices are located at 1 Bligh St and 530 Collins St.
DO YOU HAVE A CHINESE OR A MANDARIN SPEAKER?
Yes, we have two Mandarin speakers, one specialises in patents, the other in
trade marks.
HOW MUCH DOES IT COST FOR A TRADE MARK OR A PATENT?
Your attorney will be able to provide a quote once they have an understanding of
what you wish to protect.
DO YOU ACCEPT CLIENTS OUTSIDE OF AUSTRALIA?
Yes, we have many foreign clients.
DO ALL MATTERS SHARED WITH YOU REMAIN CONFIDENTIAL?
Your patent or trade mark attorney has obligations of confidentiality under
Federal Law that are very similar to those of a lawyer. You can talk with
confidence about your idea with your attorney as this will enable them to give
you the best possible advice.
DO YOU OFFER IP LITIGATION SERVICES?
IP specialist lawyers and barristers we work with offer IP litigation services.
PATENT RELATED
WHAT IS A PATENT?
A patent is an exclusive right or monopoly granted by the Commonwealth for an
invention, which is a product or a process that provides, in general, a new way
of doing something or offers a new technical solution to a problem. A patent
provides an enforceable legal right to prevent others from exploiting an
invention.
WHAT KIND OF PROTECTION DOES A PATENT OFFER?
Patent protection means that the invention cannot be commercially made, used,
distributed or sold without the patent owner’s consent. To stop infringement of
a patent, the patent must normally be enforced in a court. Conversely, a court
can also declare a patent invalid upon a successful challenge by a third party.
WHAT IS PATENTABLE?
For an invention to be patentable, it must satisfy certain criteria. For
example, it must
* be new (novel) when compared with public disclosures anywhere in the world,
and
* contain an inventive or innovative step when compared with what is known by a
skilled person in the field.
The only present statutory exclusion from patentability in Australia is the
patenting of human beings and the biological processes for their generation.
Accordingly, a vast range of products and processes can be protected by patents,
including pharmaceutical products, new materials, chemical processes and all
manner of mechanical, electrical and electronic devices.
WHAT RIGHTS DOES A PATENT OWNER HAVE?
A patent owner has the right to decide who may – or may not – use the patented
invention for the period in which the invention is protected. The patent owner
may give permission, or license, to other parties to use the invention on
mutually agreed terms. The owner may also sell the right to the invention to
someone else, who will then become the new owner of the patent. Once a patent
expires, the protection ends, and an invention enters the public domain, that
is, the owner no longer holds exclusive rights to the invention, which becomes
available to commercial exploitation by others.
WHO IS ENTITLED TO APPLY FOR A PATENT?
Only the inventor or the person who has acquired the rights to the invention
from the inventor can be granted a patent for that invention. If the invention
was conceived and developed by the inventor as an employee, the rights to the
invention may pass to the employer. If intellectual property is likely to be
developed by employees, contractors or consultants in the course of their normal
duties, it would be prudent to put a written agreement in place before relevant
work is done.
WHEN SHOULD I FILE A PATENT APPLICATION?
It is critically important to file a patent application before either publicly
disclosing the details of the invention or conducting any commercial activities
in respect of the invention. Any such actions will normally invalidate your
right to pursue patent protection, although you should immediately consult your
patent attorney if such a situation arises.
HOW LONG WILL IT TAKE FOR A PATENT APPLICATION TO ISSUE AS A PATENT?
A standard patent usually issues within a period of between two (2) to five (5)
years from the date of filing of the complete application. However, the period
can be shortened considerably if required. An innovation patent typically issues
within a period of one (1) to three (3) months. Note, however, that an
innovation patent must be certified before legal action can be taken against a
potential infringer. Certification requires substantive examination of the
innovation patent which may take up to six (6) months. Importantly, if the
innovation patent is found to be invalid during examination, it will be removed
from the register.
WHAT IS A PROVISIONAL APPLICATION?
A provisional application is used to establish a priority date for your
invention (for the purposes of establishing that your invention is new). A
provisional application is only temporary and an Australian or International
patent application must be filed within 12 months of lodging the provisional
application for your application to retain its priority date.
HOW LONG DOES A PATENT LAST?
In general, an Australian standard patent has a maximum term of 20 years, from
the date of filing of the complete application, provided that renewal fees are
paid. On the other hand, an Australian innovation patent has a maximum term of 8
years from the date of filing of the complete application.
WHEN CAN I BEGIN SELLING A PRODUCT AND/OR BEGIN SEEKING INTEREST FROM OTHERS?
If a provisional patent application has been filed for an invention, it is
possible to use the term “patent application filed”. Once a complete application
has been filed for the same invention, it is possible to use the term “patent
pending“. Only when a patent has actually been granted can a product be marked
with “Australian Patent Number xxxxxx”. These terms are used to provide notice
to third parties that a patent application has been filed in respect of an
invention. Use of these symbols where no application has been made is prohibited
and subject to fines.
WHEN SHOULD PATENT PROTECTION BE SOUGHT?
It is important to investigate the possibility of patent protection as soon as a
new product, composition or process has been created, or when modifications have
been made to a product or a process that will provide the manufacturer of that
product or the user of that process with a marketing advantage over its
competitors.
HOW CAN A PATENT BE OBTAINED WORLDWIDE?
In general, an application for a patent must be filed, and a patent shall be
granted and enforced, in each country in which you seek patent protection for
your invention and in accordance with the law of that country. An Australian
patent provides protection only within Australia. If you want to apply for a
patent in other countries, you generally have two choices:
i. file separate patent applications in each country; or
ii. file a single international application via what is referred to as
the Patent Cooperation Treaty (PCT) of which around 140 countries,
including Australia, are members.
In a PCT application, a single international patent application has the same
effect as national applications filed in the countries of the PCT, and you can
then choose to proceed in a selection of the 140 countries at a later date. You
will still need to meet the national requirements and pay the costs in each
country, but these can be deferred by the PCT procedure by up to 18 months.
WHAT IS A GRACE PERIOD?
A grace period allows public disclosure of an invention in circumstances where
the inventor has disclosed their invention before applying for a patent— for
example, when they have discussed it with a contractor without a confidentiality
agreement— without affecting the validity of a subsequent patent application. In
Australia, the grace period covers a period of no more than 12 months before the
filing date of the complete application. Importantly, however, the lack of a
uniform grace period or grace period requirements around the world means that
patent applications that rely on grace period will be invalid in some other
countries.
WHAT IS A PATENT REGISTRATION?
In a legal sense, there is no such thing as a patent registration. A “patent
application” is the first document filed to start the protection process for a
new idea. If the patent application passes through examination successfully,
then we say that “the patent is granted.”
In the United States, the equivalent terminology used is that ‘the patent has
issued’. Colloquially, people talk about patent registration because the word
registration validly applies to the granting of trade mark
applications and registered design applications, but the word should not be used
in respect of patents. The phrase “patent registration” does cause confusion
because it suggests that applying for a patent is merely a matter of filling in
a form. Of course, much more is involved.
WHAT IS THE DIFFERENCE BETWEEN COPYRIGHT AND PATENTS?
Copyright covers all two-dimensional artistic works and some three-dimensional
artistic works. However, when three-dimensional artistic works are used
commercially (e.g. mass produced), they automatically lose copyright protection.
In order to effectively prosecute a party who is using your commercial design,
you need a registered design. Neither copyright nor registered designs can be
used to protect functional concepts (directly) – this is where patents come in.
A patent is a type of intellectual property right that encapsulates an idea in
words and stops third parties from copying the idea. Copyright is not normally
an effective form of protection for new developments in computer software or
website applications – these are best protected by patents. In summary,
copyright is used to protect artistic & literary works, registered designs are
used to protect the look of designs that are being used commercially and patents
protect function concepts or, put simply, the way things work.
WHAT IS A PATENT ATTORNEY?
A patent attorney provides representation and advice regarding patenting and
related intellectual property matters, such as preparing and filing patent
applications for inventions, representation in matters before the Patent Office,
patent oppositions and advising in relation to infringement. A patent attorney
has a degree or other qualification in a field of patentable technology
(traditionally in science or engineering) coupled with further qualifications in
the law and practice of intellectual property. Section 200 of the Patents Act
1990 (Cth) provides that a communication between a registered patent attorney
and the attorney’s client in intellectual property matters, and any record or
document made for the purposes of such a communication, are privileged to the
same extent as a communication between a solicitor and his or her client.
WHAT IS THE DIFFERENCE BETWEEN PATENT ATTORNEYS AND PATENT LAWYERS?
In Australia, there is often confusion in delineating whether one should consult
a patent lawyer or a patent attorney about a patent matter.
A patent lawyer in NSW is a solicitor specialising in intellectual property
rights. Patent lawyers are professionals who has successfully completed either
the Board’s examinations (Diploma in Law) or a NSW accredited law degree, as
well as completed an accredited program of practical legal training. Patent
lawyers typically work with barristers in the litigation of patent rights.
On the other hand, a patent attorney is a professional who has:
1. an engineering or science degree;
2. completed a group of topics prescribed by the Professional Standards Board
relating to intellectual property rights; and
3. worked under the supervision of a patent attorney for the prescribed period.
Patent attorneys are often described as part-engineer, part-lawyer, and are
typically involved in writing patent applications and in managing patent
applications through to patent grant. Patent attorneys can also handle patent
oppositions (a tribunal-type process for patent conflicts) before IP Australia.
IS A CONFIDENTIALITY AGREEMENT NECESSARY BETWEEN A PATENT ATTORNEY AND A CLIENT?
The Australian Patents Act provides that a communication between a registered
patent attorney and the attorney’s client in intellectual property matters, and
any record or document made for the purposes of such a communication, are
privileged to the same extent as a communication between a solicitor and his or
her client. That is, registered patent attorneys are under a strict obligation
of confidentiality and a strict fiduciary requirement to use your information
only to your benefit.
WHAT IS THE PROCESS FOR OBTAINING A PATENT?
For more information see our patent process flowcharts.
WHY SHOULD I GO TO BAXTER IP FOR PATENT SERVICES?
Patents are extremely difficult documents to write correctly and attorneys train
for many years on how to write them in a manner that is as watertight as
possible. If your patent application is not written incorrectly it will not
offer any legal protection, worse still, it may disclose your idea so anyone can
copy it.
TRADE MARK RELATED
WHAT IS A TRADE MARK?
A trade mark is used to distinguish goods or services from those provided by any
other person and allows customers to easily identify your goods or services.
Trade marks are an effective marketing tool to advertise your product and
provide a unique and recognisable identifier in the marketplace.
Trade marks can be formed by using or combining signs such as words, numbers,
names, brands, colour, shape, images, smells or sounds. A trade mark is the
only way to formally own a unique name or sign that distinguishes your products
in the market and upon registration you will receive a formal Certificate of
Registration of Trade Mark to prove ownership. This gives you the sole right to
use and enjoy the trade mark in the country of registration.
WHAT IS A TRADE MARK ATTORNEY?
A trade mark attorney provides representation and advice regarding trade marks
and related intellectual property matters, such as trade mark searching and
opinions, preparing and filing trade mark applications, representation in
matters before the Trade Marks Office, trade mark oppositions and advising in
relation to infringement. Section 229(1) of the Trade Marks Act 1995
(Cth) provides that a communication between a registered trade marks attorney
and the attorney’s client in intellectual property matters, and any record or
document made for the purposes of such a communication are privileged to the
same extent as a communication between a solicitor and his or her client. Both
patent and trade marks attorneys can provide representation and advice regarding
designs and related intellectual property matters, such as design searching and
opinions, preparing and filing design applications, representation in matters
before the Designs Office, design oppositions and advising in relation to
infringement.
WHERE DO I START IF I WANT TO FILE A TRADE MARK APPLICATION?
Commonly, the name of a company or product is chosen at the last minute when an
accountant asks what you intend to call your company or the name you need for
printing packaging or the like. It’s easy to fall into the trap of picking a
descriptive name thinking this will tell clients what you do and make you easier
to find. The downside to this is that you fall into the bucket with hundreds of
other descriptive names chosen by your competitors. This means your name is
ultimately not unique but generic and you risk trying to differentiate yourself
based on price only.
The starting point to choose a good trade mark, a name that you can actually
own, is to choose a name or sign that is not generic or descriptive for your
goods or services. Made up words make great trade marks precisely because they
do not directly describe the goods and services you sell.
Think about the Telstra™ trade mark. We know they provide telephone services,
but we know that because their marketing and branding has embedded that into us.
Looking at the name Telstra™ without your existing knowledge does not provide
much insight into the services they provide. An international tourist for
example who is not aware of the brand is unlikely to know what they do without
being told. This may seem counter intuitive, but who do you think will make the
more profitable customer?Someone who values your brand as a premium provider and
is willing to pay a higher price for a better service long term service or a
traveller looking for a budget solution for a one week stay in Australia and
will never use your service again.
I know which client I want and the way to build that brand premium is by
choosing a good trade mark. To do that don’t pick a name that is descriptive or
generic.
If you aren’t sure whether your name is descriptive or generic, speak to us and
we can perform registrability search and report to advise you whether the name
is likely to be accepted for registration.
MY TRADE MARK IS DISTINCTIVE AND UNIQUE, WHAT IS THE NEXT STEP?
If your trade mark is distinctive and unique, the next step is to file a trade
mark application. Filing a trade mark application secures the date from which a
trade mark is enforceable once registered. Your trade mark attorney will work
with you to correctly identify the goods and services that should be included
your trade mark application. The trade mark application process takes about 7
months in straightforward cases so it is important to file the application as
soon as possible to ensure the earliest possible grant date. Once your trade
mark has granted, it can be enforced.
DOES MY TRADE MARK PROTECT ME OUTSIDE AUSTRALIA?
Trade mark registrations in Australia only protect you in Australia. If you want
protection for your trade mark overseas you will need to file an application in
each country of commercial interest. It’s important to have a filing strategy
in place for commercial expansion as having someone register your trade mark
overseas before you get there can be problematic. Our attorneys can help by
preparing a filing strategy to support your international business.
WHAT IF I DECIDE NOT TO REGISTER MY TRADE MARK?
If you choose not to register your trade mark you are leaving your name open to
be used by others as you have a very limited ability to stop them. Only
registering your trade mark provides proof of ownership and the ability to more
easily stop others from using the name.
WHAT IS THE PROCESS FOR OBTAINING A TRADE MARK?
For more information see our trade mark process flowcharts.
WHY SHOULD I GO TO BAXTER IP FOR TRADE MARK SERVICES?
Ultimately, only a small number of “do-it-yourself” applications are successful.
Most are abandoned due to insufficient knowledge of the application process or
requirements. Inexperience in preparing trade mark applications can incur
unnecessary time and cost on compliance requirements and professional advice is
essential for a positive outcome.
Should someone oppose to your trade mark application, this may be difficult to
defend as it can involve complex legal issues and points of law.
Even if the trade mark is successfully registered there may be significant flaws
in the application that would prevent you from successfully using the
registration to enforce your brand. These often only come to light when you
seek professional advice when you wish to take action against an infringer. The
following are examples of the types of deficiencies from incorrectly filed
applications:
* the scope of registration may be too narrow meaning the registration does not
provide adequate protection for your core goods and/or services;
* the scope of registration may be too broad leaving your trade mark open to a
non-use removal action or open to be removed as a bad faith application;
* or the goods and/or services chosen may not be correctly identified;
* the incorrect trade mark may have been registered; and
* you may have failed to separately register important components of the trade
mark.
Without professional advice from the outset you may find you do not have the
appropriate statutory rights required and your ability to enforce your trade
mark can be severely limited or non-existent.
Baxter IP has extensive expertise and experience in the area of trade mark law
and our trade mark attorneys have successfully registered hundreds of trade
marks for our clients. Please contact us for a free and confidential no
obligation consultation to discuss your trade mark needs.
GET IN TOUCH
Call us at +61 2 9264 6716 or let us know when to call you
Submit
* Sydney Patent & Trade Mark Office
* Address
* Level 12
10 Carrington St
Sydney NSW 2000
* Phone
* +61 2 9264 6716
* Melbourne Patent & Trade Mark Office
* Address
* Level 16
530 Collins St
Melbourne VIC 3000
* Phone
* +61 3 9602 2288
* Brisbane Patent & Trade Mark Office
* Address
* Level 10
239 George St
Brisbane QLD 4000
* Phone
* +61 7 3155 7970
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Baxter IP, Patent & Trade Mark Attorneys is a Member of
* Association Internationale pour la Protection de la Propriété Intellectuelle
* Asian Patent Attorneys Association
* International Trademark Association
* The Institute of Patent and Trade Mark Attorneys of Australia
* American Intellectual Property Law Association
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