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Protecting uniqueness - What is behind Intellectual Property's closed doors?

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 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 and the boutique firm 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 [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.


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IP and its friend, Moral Rights

Working for a consultancy, IP is something that gets haggled over every day in my workplace. There seems to be two positions: those of the opinion that if you think of something, you should have the chance to 'own' it; and those of the opinion that whoever pays for the work involved 'owns' it.

In my case, much of what is being bought is methodologies and thought-processes. Now if someone has paid for your good ideas about how to go through a process, are you no longer allowed to think that way, or advise that way, because the IP isn't yours? It's a complex issue.

Interestingly, on the flip side there is now a growing trend to require consultants to also give up their 'Moral Rights' along with their IP. Moral Rights are a quasi-legal concept in which, while someone might not have ownership of something, they still have a say in how it is used. For example, an artist might sell a painting, but they retain the moral right to say that they don't want it used for particular purposes, such as government or religious propaganda.

In a sense, Moral Rights mimic IP in being subjective, intangible notions that are trying to be administrated as though they were physically realised, restricted entities.

Pertinent concerns

Great job Norma, your article is very interesting, entertaining and at the same time does air pertinent concerns. Are we blurring the line between IP rights and paranoia?

Patenting our DNA is a scary idea.

A recent Commission on Intellectual Property Rights reported that IP laws do not actually benefit developing countries. They are in fact harmed in the areas of health, agriculture, education and information technology. For example, they are likely to drive up the overall cost of medicines and seeds in poor countries. IP laws are meant to protect property and not widen the gap between the rich and poor countries.

Your piece is very stimulating and makes us think how far we will go with this. I wonder 20 years from now will we be trade marking our moves on the dance floor?

A patent on human DNA

Norma, great piece.

"It might come as a surprise to many people that in the U.S. patent system human DNA is treated like other natural chemical products," said Fiona Murray, a business and science professor at the Massachusetts Institute of Technology in Cambridge, and a co-author of the study.

"An isolated DNA sequence can be patented in the same manner that a new medicine, purified from a plant, could be patented if an inventor identifies a [new] application."

Our DNA has been around for millions of years. If someone discovers the role that a certain piece of DNA has in our life why should they be able to take out a patent on that DNA? They did not invent or create the DNA.

Science should be for available to all. It is only by building on our scientific knowledge that we will be able to advance our understanding of the universe. To put limits on the sharing of knowledge is only going to impede the advance of science. 

When my b-lls are your property

Norma, the stuff emanating over the last decade, especially re genetics, has been chilling.  We've already had a trial run with GM modified crops, including the right of companies to levy on growers not purchasing seed who have had their crops contaminated and can than be charged for GM seed use, anyway.

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