Protecting uniqueness - What is behind Intellectual Property's closed doors?
by Norma De Castro Couto

The idea that one day your mind will create something so unique and valuable, that you'll need it to be protected by law, is not very common for most of this planet's inhabitants. That's probably why Intellectual Property or IP is a controversial topic.

IP Australia [1] is the government agency responsible for protecting an Intellectual Property from being used by anyone else but the happy proprietary. The first trademark to be registered in Australia, dates from 1906, history shows that IP Australia has a tradition of only registering conventional trademarks (predictable marks that fit in traditional categories). Non-conventional trademarks (ground breaking concepts) are more difficult to register.

That's why the news that a scent was protected for the first time in more than 100 years, since the first trademark was registered, is so distinctive. It opens the door to a whole new world of possibilities and makes us wonder in the midst of a fast changing world what is next? What else could be subjected to IP laws and what motivates someone to do it?

The trademark is of eucalyptus smell for golf tees [2] and the boutique firm [3] who protected the scent doesn't seem to think their client was going too far with his unconventional request. Mr. Michael Beverley from IP Wealth told us "It has nothing to do with paranoia, It was extremely useful for him to register [the trademark], it gave him a very substantial marketing advantage, created massive press appeal and gave him the right to stop competitors from copying him."

The first scent trademark in Australia protects uniqueness. As established by law 'To be trade marked the scent must be something unusual added to the goods to assist in identifying them via olfactory means from the similar products of other traders.' That's why Channel no.5 can have their name and logo trademarked but not the smell of the perfume.

Some clients have inconsistent requests, Michael admits "Every couple years someone comes in and tries to register the sentence 'Made in China' - No surprise they are rejected". As far as controversial trademarks IP Wealth's Managing Director says that

"FCUK [4] [French connection's trademark] is one of the most controversial trademarks ever to be registered, it's a visible misprint of a well known offensive term and the trade mark laws prevent the registration of offensive trademarks - However the trademark "FUCKERWARE" was able to be registered for sex toys as their public was unlikely to be offended by that".

If just like me, you have never though of the reason why no other chocolate in Australia has the triangle shape that TOBLERONE does, Trademark is your answer and it's between many others we never thought about.

Mr Beverley cogitates that "In the future movies starts will be able to register their unique clothing style… I know a copywriter that uses a bright orange suit to work, I think I could trademarked that…" So if you're a copywriter, your dreams of wondering around town in a sparkling orange suit and eat triangle shaped mars bar, is close to an end.

IP will remain an extraordinary and controversial topic, especially in the midst of new technologies ways to convey a message. To think that your intellectual expressions can, one day, join your property portfolio is only as amusing as it's challenging and difficult to be delimited by law.