IP and importing

An awareness of intellectual property (IP) rights and how they may impact on importing products into Australia is critical for Australian importers. 

Although IP rights are generally similar around the world, they are often territorial in nature, with protection dependent on the existence of a registered right in the country of interest.  

For example, patents, designs and trade marks only provide protection in the country they have been granted.  

In Australia, some IP rights can exist without registration, such as copyright and unregistered trade marks, which have acquired a reputation.  

These characteristics mean operators need to consider IP carefully when making arrangements to import their products.

Important tips to consider

  • Check that the importation of goods or services into Australia does not infringe IP rights already in force in Australia. 
    This may be the case even where the supplier of the imported products owns the IP rights overseas.  The owner of an IP right overseas may be different and unrelated to the owner of an equivalent right in Australia.
  • Check if the importer (or its supplier) should itself act to obtain IP protection in Australia.  IP protection existing overseas may not be sufficient to provide protection in Australia. 
    For example, a trade mark registered and used overseas may provide limited or no protection if not registered in Australia. In fact, use of the ® symbol on products in Australia (indicating registration) may constitute an offence if the relevant trade mark is not registered in Australia.
  • Failure to consider IP rights when making importing arrangements may result in the importer being the subject of legal action by the owner of IP rights in Australia.
    This includes the possibility that products may be seized by the Australian Customs and Border Protection Service, or may allow others to take advantage of the importer's efforts in establishing a reputation. 

Enquiries about the existence of IP rights in Australia can be made relatively easily by searching relevant databases and checking related websites.

Making thorough IP enquiries is a crucial step to reduce the risk of infringement and includes:

  • seeking evidence from the supplier of the nature of IP rights existing in relation to the products (both overseas and in Australia)
  • conducting a search of the registered IP rights databases maintained to identify whether relevant IP rights exist in Australia
  • reviewing the marketplace to identify unregistered IP rights which may exist, for example, an unregistered trade mark being used by another person in Australia

If IP rights do not exist in Australia, then as the importer, you may decide that you (or your supplier) should apply for IP protection in Australia.

It is critically important that IP protection be sought by the appropriate party otherwise any resulting registration may be invalid. 

In many cases international treaties and conventions will assist an owner of an IP right overseas to gain protection in Australia. 

As an importer, you should ensure that you have appropriate commercial arrangements in place with suppliers specifically to protect your valuable IP.

Among other things, those arrangements should:

  • authorise (or license) the use of the IP rights in Australia (or ascertain that no rights are required)
  • confirm whether the rights granted are exclusive (or whether others can also import the products)
  • clarify what rights you as the importer have to register and enforce the IP rights

In addition, if an arrangement involves franchise rights, the parties need to consider whether the Australian Franchising Code of Conduct or other Australian laws may impact the arrangement.

A range of enforcement options are available for owners of IP rights in Australia who believe their rights are being infringed, including civil court action and notices of objection.

It is also important to be aware of parallel imports rules and regulations and their impact on IP.

Professional advice

There can be complex IP issues involved with importation, so it is a good idea to contact an IP professional before you commit to importing goods or services into Australia.

More information

This information has been developed in conjunction with Spruson & Ferguson Patent & Trade Mark Attorneys.

Last Updated: 23/11/2013

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