Introduction to Intellectual Property for business

Intellectual property (IP) is the property of your mind or proprietary knowledge and can be an invention, a trade mark, a design or the practical application of your idea.

It is important that you understand how to protect IP as it is a valuable business asset and it will usually be easier and cheaper taking enforcement action following a breach of your rights if they have been protected “up front”.

In this article we provide an overview of the different types of IP and look at the basics for protecting your IP rights.


Trade Marks

A trade mark can be a letter, number, word, phrase, sound, smell, shape, logo, picture, aspect of packaging or a combination of these that distinguishes your goods and/or services from those of other traders.

A trade mark identifies the particular goods or services of a trader as distinct from those of other traders.

There is no legal requirement to register a trade mark, although registration establishes your legal rights to use, sell or license the trade mark or to take action against another party and prevent them from using your trade mark without permission.

If you do not register your trade mark, you will need to rely on protection through legal action, such as passing off under common law or misleading and deceptive conduct. Such an action can be difficult, expensive and time consuming.



Copyright is a collection of exclusive rights that vest in certain types of creative work, such as written material, art, literature, music, film, broadcasts and computer programs.

A single item can contain more than one element that is protected by copyright. A website will have copyright as the text, any images and the computer coding, among other things. Each of these is protected by copyright, and it is important to identify the owner of each of these rights.

The exclusive rights granted by copyright vary depending on the nature of the material.  In general they include the exclusive right to copy the material, to publish the material and to make various other uses of it.

In Australia, copyright protection is automatic.  You don’t have to apply to register your copyright.

The owner of copyright is usually the person who created the material, although there are some exceptions to this such as where the person is an employee and the material is created as part of their employment, in which case the employer will own the copyright.

It is particularly important when selling a business to ensure that any asset in which copyright subsists is yours to sell.



Inventions that are new, inventive and useful can often be protected through patent registration.

It is important to be aware that patents protect only a specific invention and once an invention has been made public it is no longer able to be protected through patent registration.

A patent owner has the exclusive right to use, sell or license the invention. Patents also allow the owner to stop others from manufacturing, using, copying and/or selling the device or process.

There are two types of patent registration available in Australia, innovation patent and standard patent.  The process for registering a patent can often be long and complicated and professional advice is recommended.


Trade Secrets & Confidential Information

Any information that is not known publicly is confidential information.

For a business this can include customer lists, business and marketing plans, internal business processes or formulas for products.  Business ideas that have not been openly discussed can also be considered confidential information.

There is no registration process for trade secrets or confidential information, and they are normally protected via contracts, agreement and management procedures.  In general, the owner has the exclusive right to use, sell or license the IP.


Moral Rights

Moral rights are granted to the creator of material in which copyright subsists.

Moral rights are the right of attribution of authorship, the right against false attribution of authorship and the rights not to have a work subjected to derogatory treatment.

Unlike copyright, moral rights are non-transferrable.  They will always vest in the creator.  As a result, a person may have moral rights in material but not own the copyright.


Designs, which are the way a product looks or a design on a manufactured product, can be registered if they are new, distinctive and have not been publicly disclosed.

Some designs can be protected by copyright, however where a three dimensional design is in industrial or commercial use copyright protection no longer applies.  In order to be protected, such designs need to be registered.


Other types of IP

Plant breeders rights are used to protect new varieties of plants by giving exclusive commercial rights to market a new variety or its reproductive material.

Circuit layout rights automatically protect original layout designs for integrated circuits and computer chips.


Exclusive Rights & Duration

Registered IP rights usually provide you with exclusive rights. Each IP right has its own restriction in terms of duration.

Copyright protection generally lasts for 70 years.Where duration of protection depends on publication protection is for 70 years from the date of publication, otherwise it is the life of the author plus 70 years.

Standard patents last for 20 years. Trade marks can remain in force indefinitely provided renewal fees are paid every 10 years.

Design registration protects the design for an initial period of 5 years that is renewable up to 10 years.


International Protection

Most IP rights are territorial, meaning they have to be dealt with in each new territory where you intend to trade. For example, a patent, trade mark or design granted in Australia is not automatically granted in other countries.

Copyright is the only IP right that is automatically recognised in the global market. All other forms of IP need to be specifically assessed and approved in each country in which you intend to do business.

Australia is party to a number of international agreements, making it easier to apply for rights such as trademarks, patents and designs in other countries.



IP rights are negotiable and can be used for commercial advantage. They can generally be bought, sold, licensed, given away or made freely and widely accessible.



IP is a valuable business asset, protecting it should be standard business practice forming part of the overall business plan. Understanding the rights that exist and the methods available for protecting IP is the first step to creating greater value in a business.

For more information on protecting your IP rights contact us on 03 9497 2622 or email

Retirement Living: Life beyond bingo and bowls!

Not surprisingly people talk about buying their first home as being a life changing event and it is. However, in the past it has been rare for people to talk so excitedly about moving into some form of retirement living.

Given that sooner or later most of us are likely to have to deal with this issue either because we are assisting our parents, another family member or friend in making the transition from their home to a retirement community or because we are considering such a move for ourselves, it is important to know what your options are and to understand the legal and financial implications that come with this type of move.


A world of options

In days gone by the very notion of a retirement home was enough to send a shiver down many people’s spines. Thoughts of early dinners and endless games of bingo did little to encourage our more mature citizens to view this as a desirable life stage.

The good news is that things on the aged care front have changed considerably in the last decade and there is now a wider choice of accommodation options available than ever before.

Choices range from luxurious apartment complexes for the “Over 55” community through to multi-functional retirement communities where a variety of accommodation and services are provided on the one site ranging from independent living right through to around the clock nursing care of the more traditional nursing home variety.


Things to think about

The key to any successful life change usually starts with learning about the options available and understanding the legal and financial obligations that come with each option, so get out and start looking at what is available in the area where you or the person you are assisting would like to live. Then once you have an idea what is available in the area and price range you are looking for start considering the legal and financial issues that go hand in hand with the more emotional part of the process.


Remember not all retirement communities are created equal

First up ask “Is this the right retirement community for me?” If you are helping someone else it might not be right for you personally but is it what they are looking for?

Now this may sound like an obvious question, but it is important not to be dazzled by a new fancy fit out if on closer inspection the retirement community does not offer the range of services needed or if it is so far from family and friends that visitors will be few and far between and social isolation is likely to occur.

Just as every suburb and neighbourhood has its own quirks every retirement community is different and this is definitely not a case of one size fits all.


The Wish List

Make a wish list of what you are looking for.

At the top of the list put the “must haves” and at the bottom of the list add the “would be nice but not essential” things.

Things to consider including might be:

  • being close to public transport,
  • a range of on-site activities,
  • nursing assistance being available if needed,
  • a one-stop shop with different care levels all catered for in the one complex, or
  • proximity to current neighbourhood and family and friends.

Each person will have a different set of priorities.

The more you are able to focus on what is most important the easier it should be to eliminate options that are not the best for you and also the easier it will be to avoid getting side tracked by things that really don’t matter quite as much.


Some important things to think about

Making a move into a retirement community is a significant life change and there are emotional, financial and legal issues that will come up along the way.

Some things to consider before signing any paperwork and making a commitment of this kind include:

  • Do I need to sell my home first before I can afford to move?
  • If I buy into a retirement community what exactly am I buying?
  • Is the property strata or community titled or does some other form of ownership apply?
  • Does the property I am buying form part of my estate after I die or does ownership revert to some other entity (such as the company that operates the retirement community)?
  • Exactly what does the contract say – what are my rights and responsibilities under the contract?
  • Are there any ongoing fees and charges in addition to the purchase price?
  • What other costs do I need to factor in when I move? Don’t forget to include moving costs and possibly storage costs if you won’t be able to take all your possessions with you and are not yet ready to part with things you cannot fit into your new home.
  • Do I have to pay the whole price upfront or can you pay a portion of the cost and then pay the balance in ongoing instalments? Are they any other payment options such as pension sacrifice available?
  • Will the move into a retirement community affect any pension or rent assistance currently received?
  • Is the facility able to provide a higher level of care later on if your needs change or would you need to move to a different facility if your care needs increased?
  • What costs are associated with any care provided?

Ask for help

This type of move can prove to be a challenging one for both the person involved and anyone assisting them and it is important to understand exactly what is involved legally and financially before entering into any contracts.

If you or someone you know wants more information or needs help or advice, please contact us on 03 9497 2622 or email

Wills for blended families

Making a Will is important, particularly if you are part of a blended family. A blended family is a family in which one or both partners have a child or children from a previous relationship. Careful estate planning now should ensure that all of your intended beneficiaries are provided for when you die and that the potential for conflict within the family unit is minimised.

There is no one-fit solution when it comes to estate planning for the blended family. The dynamics and needs within families evolve and personal assets may fluctuate from year to year. However, by identifying the potential issues that might arise within each family unit, and considering some options to address these, an effective estate plan can be accomplished.

The important thing is to discuss your circumstances and objectives with your legal advisor so that your wishes can be properly set out in your Will and other estate planning documents. These documents should be reviewed regularly to take account of changing circumstances.

Competing interests – the common issue

The most typical issues faced by a Will-maker within a blended family are the competing interests of past and present partners, biological children and step-children. The Will-maker is likely to want to look after the current partner and also their own children from their previous relationship. There may also be children of the present relationship and children from the partner’s prior relationship to consider.

Traditionally, a Will for a married couple provides for the estate to go to the surviving partner in the first instance and then upon their death, to the children. This is likely to be inappropriate for blended families – not only must the children of the deceased wait until the step-parent dies before inheriting, but there is a risk that the surviving partner may change their Will so that the deceased’s own children miss out. A further risk is that the assets may over time diminish, leaving little for the deceased’s children.

In some instances, if adequate provision is not made from a deceased estate, an eligible beneficiary may be able to make a family provision claim causing distress, delay and uncertainty during an already stressful time.

The following may provide some helpful suggestions when considering these complex issues.

Immediate gifts and interests in real estate

When making your Will, you may choose to provide an immediate gift to your children upon your death rather than your children waiting to inherit after the death of your partner. A life insurance policy nominating the children as beneficiaries might be appropriate in this instance.

If the estate is significant, the Will could provide for an immediate gift of real estate, money or other valuable asset to the children. This will safeguard against the possibility of your children missing out on an inheritance should your partner later change their Will or your estate assets diminish.

If you and your partner hold real estate as joint tenants, you might consider changing this to a tenancy in common. A joint tenancy means that the share of property held by a deceased tenant automatically goes to the surviving tenant. This cannot be altered by Will. However, if the property is held as tenants in common, your share may be left to your children subject to leaving your partner a life interest in that share of the property.

A life interest will provide your partner a continued right to reside in and use the property until he/she dies at which stage your share will revert to your children. Note however, that life interests can be complex due to circumstances such as health and aging of the surviving partner who may need to downsize or move to an aged care facility. These issues should be carefully considered and discussed with your legal advisor.

Testamentary trust

A testamentary trust is a trust contained in a Will that comes into effect upon the testator’s death. A testamentary trust provides flexibility and control in asset distribution amongst beneficiaries and assists in protecting your assets from third parties and creditors. Assets can be preserved so that they can pass through future generations and the trust can provide for different scenarios.

Testamentary trusts are generally tax effective and may be worthwhile considering in your estate planning if the value of your likely assets warrants the establishment and administrative costs.

Choosing your executor

Your executor is your personal legal representative when you die. He or she has the role of ensuring that the wishes set out in your Will are followed. Your executor will deal with your estate lawyers, accountants, financial advisors and real estate agents. He or she will maintain estate accounts, pay bills and generally oversee the administration of your estate.

Generally, a person’s spouse or child will be nominated for this role. However, because of the dynamics involved in blended families it may be preferable to appoint one or more neutral friends or professionals so that the role may be carried out with impartiality.



These are some important points worth remember when considering estate planning for the blended family:

  • Talk to your partner about your estate planning objectives.
  • List all assets including those held separately and jointly.
  • Consider everybody from the family including spouses, previous spouses, biological and step-children, and identify those whom you wish to benefit – preparing a family tree may be helpful.
  • Contemplate if your choice of beneficiaries might leave open the potential for a family provision claim. You may need to discuss this with your legal advisor.
  • Choose impartial executors.
  • Discuss your objectives with your lawyer so the relevant documents can be prepared.
  • Ensure that you have binding death benefit nominations in place for your superannuation and life insurance policies.
  • Review your Will and plans regularly, and immediately if your personal, health or financial circumstances significantly change.

If you or someone you know wants more information or needs help or advice, please contact us on 03 9497 2622 or email

What is an Agreement to Lease?

When renting business related property it is important for both landlords and tenants to understand the relationship they are entering into and the rights and obligations that they each have, the document that governs this relationship is usually a Commercial Lease.

A Commercial Lease gives the tenant an immediate right to take possession of premises and occupy those premises to the exclusion of all others, including the landlord or owner.

An Agreement to Lease is used prior to a Commercial Lease being signed in circumstances where there are things to be done before the landlord can give the tenant exclusive possession of the premises.

An Agreement to Lease documents each party’s rights and obligations and sets down all of the requirements that have to be satisfied prior to the terms of the actual Lease taking effect.

An Agreement to Lease can be very useful for both landlords and tenants and it is important to understand the relationship being entered into and the rights and obligations of each party.


When to use an Agreement to Lease

An Agreement to Lease is often used when:

  • the tenant needs to obtain consent from someone, say for a particular use of the premises
  • the premises are being purpose-built for the tenant; or
  • an existing building is being renovated before the tenant moves in; or
  • the current tenant may be moving out but has not given up possession, often the case in shopping centres.

Completion of the works, fit out, consent or delivery of vacant possession is usually taken into account to set the start date of the Lease.


The benefits of an Agreement to Lease

An Agreement to lease creates a binding obligation on both parties to enter into a lease on agreed terms, subject to agreed conditions being completed. This creates more certainty for the parties where money is to be spent before the Lease commences.

If you are a landlord undertaking building and renovation work to rental premises is a significant cost to you in time and resources. It is a period of down-time where no rental monies are received and is best kept to a minimum. You may have to obtain Council approval for building work which takes time and you will have to contract and co-ordinate the many tradespeople to complete the works.

If you are a tenant you will want to make the best possible use of the premises from the first date you pay rent, being able to complete these works before the Lease commences is essential. It is also important that no inconvenience is caused to your customers by building works in your business.


Issues commonly covered


If the premises are not tenanted or the use of the premises is changing you may have to apply to Council or other authority for consent to use the premises for a particular type of business such as a café or a service such as a medical office.

Consent may also be required from a mortgagee of the premises or a licensing authority if the business requires a licence to operate.

Obtaining these consents can take time and can be done under the terms of an Agreement to lease.


Fit out works

A Works Schedule is often attached to or is contained in the Agreement to Lease and sets out what works are to be done and who is obligated to do the works – landlord or tenant.

Often plans and specifications are attached to the Agreement and this is useful in the event that the landlord and the tenant have a difference in opinion of what exactly is required.

The tenant is usually responsible for some of the fit out items or the landlord directs the tenant as to how the premises must be fitted out. In a shopping centre for example, the landlord may have design guidelines that the tenant must follow when fitting out the premises. If the tenant has control over the design of the premises then they often have to get permission from the landlord for the works and provide plans and design drawings to the landlord for approval.

If the tenant is doing most of the fit out the landlord will often specify a commencement date for the Lease even though the tenant’s fit out may not be completed. The tenant should be organised as early as possible with design and trades to minimise the period that they are paying rent but may not be open for business.


Time frames

The Agreement to lease will usually have a time frame for completion of the conditions as the works or consents will usually have to be completed prior to the Lease commencing.

Delays may occur and it is important that a workable time frame is in place prior to entry into the Agreement to Lease.

The tenant should also ensure that there is a “sunset date” in the Agreement to Lease in case the works being done by the landlord are not completed in time or the required consent has not been given. The tenant may then be able to terminate the Agreement and find alternate premises rather than being delayed further.


Other provisions

The Agreement to Lease will usually have a copy of a draft Lease attached to it so that the terms of the Lease are clear to the parties and agreed from the outset.

The terms of the Lease should be reviewed by your lawyer before an Agreement to Lease is signed.

Common provisions in a Lease which may require review include, any options for renewal, the commencement date which may be the “hand over” date, the fit out period if any, the amount of rent payable, rent review dates and method (often the CPI adjustment or a specified percentage), outgoings and promotional costs payable, what use is permitted at the premises, insurance and guarantee requirements, works to be completed by each party and time frames for works completion, de-fit costs or what the tenant must do to “make good” the premises when they vacate. Attachments to the Agreement to Lease may be a “works schedule”, plans and specifications, tenancy listing.

If you or someone you know wants more information or needs help or advice, please contact us on 03 9497 2622 or email