Overview of the legal framework

Australia’s IP legal framework mainly comprises:

• Patents Act (Patents Act 1990)

• Trade Marks Act (Trade Marks Act 1995)

• Designs Act (Designs Act 2003)

• Copyright Act (Copyright Act 1968)

• Plant Breeder’s Rights Act (Plant Breeder’s Rights Act 1994)

The competent authority is IP Australia, which is under the Department of Industry, Science and Resources.
Australia is a member of WIPO, the PCT, the Madrid System, the Hague Agreement, the Paris Convention and TRIPS,
and has established Patent Prosecution Highway (PPH) cooperation with many offices (including China, the United States, the United Kingdom and the EU).

International cooperation and system alignment

• Australia is a member of WIPO, the PCT, the Madrid System and the Hague Agreement;

• Participates in multiple Patent Prosecution Highway (PPH) programmes;

• Cooperates with IPONZ (New Zealand) on cross-border trade mark examination coordination;

• Provides comprehensive electronic services (eServices) covering filing, renewal and opposition.

Trademark system

Filing routes

• Applications can be filed directly with IP Australia;

• Or designate Australia via the Madrid Protocol.

Classification standard

• Applies the Nice Classification;

• Supports both single-class and multi-class applications.

Examination procedure

• Formality examination: about 1–2 months;

• Substantive examination: about 6–9 months;

• Opposition period: 2 months from the date of publication.

Use and renewal

• Registration term: 10 years, renewable indefinitely;

• Non-use for a continuous period of 3 years may lead to cancellation.

Examination features

• Examination language: English;

• Applies the “First-to-File” system;

• Examination focuses on distinctiveness and conflicts with earlier rights;

• The system provides options for expedited examination, hearings and opposition procedures;

• The online service platform is Australian Trade Mark Online Search System (ATMOSS).

Patent system

Types of protection and term

• Invention patents (Standard Patent): 20 years from the filing date;

• Innovation patents (Innovation Patent): 8 years (system abolished in 2021 but still applicable to transitional applications).

Examination system

• Substantive examination system;

• A request for examination must be filed within 5 years from the filing date;

• Average examination period: 24–30 months;

• Publication: 18 months from the filing date.

International routes

• Australia is a PCT contracting state; national phase entry is available via the PCT;

• Cooperates on PPH fast-track examination with multiple offices (China, Japan, the United States, Korea and the EU).

System features

• Applies the first-to-file system;

• Supports divisional applications and deferred examination;

• Annual renewal fees are required after grant;

• Foreign applicants must appoint a local registered patent attorney;

• The official language is English.

Design protection

Legal basis

• Designs Act (Designs Act 2003).

Scope of protection

• The shape, configuration, pattern, ornamentation and visual features of a product’s appearance;

• Includes industrial and consumer product designs.

Term of protection

• Initial term of 5 years, renewable once up to a maximum of 10 years.

Examination procedure

• Formality examination: about 1–2 months;

• Substantive examination must be requested separately (it is not automatic);

• Examination language: English.

System features

• A single registration covers the whole of Australia;

• Examination focuses on novelty and originality;

• Multiple designs can be combined in a single application;

• Since 2022 Australia has acceded to the Hague Agreement, allowing protection via international design applications;

• Prior designs can be searched via Australian Design Search.