This chapter considers how intangible assets that businesses develop, such as inventions, designs and brands, as well as business ideas and information, can be protected pursuant to Australian intellectual property (IP) laws. It identifies that various IP rights are protected by statute, while others are protected pursuant to common law. It explains that some forms of intellectual property require businesses to apply and register for protection before an IP right can be claimed, such as designs, patents and trade marks, while others, such as copyright, dont require any application or registration. The chapter highlights that an array of IP rights can be used to protect different aspects of a business’s goods and/or services. For example, a business’s product might have a patent that attaches to it regarding how it works, a registered trade mark protecting its brand name, and a design for its appearance. The more IP rights that can be used to protect a particular good or service, the more defiant the good or service will be to imitation and competition.

Intellectual property involves the legal protection of inventions and other creative products. Its main categories are patents, copyright and trade marks, with related forms of protection also covering designs, circuit layouts, plant breeders’ rights, domain names and trade secrets. Some intellectual property rights attach automatically to a novel invention or creation, while others require registration in a publicly administered system, depending on the jurisdiction. Protection is typically limited to a specified time, with extension possible in some systems. What is offered to creators is an incentive to make potentially beneficial advances available to the public, rather than be kept secret or for private use only, by way of a limited monopoly.

In a 2017 decision, theUS Supreme Court held that constitutional commitments to free expression barred the Patent and Trademark Office from rejecting the registration of 'The Slants' for an Asian rock band, even though the term is understood to disparage Asians. Because we do not agree with the Court’s view that true speech can always correct false speech, we argue that the US can learn from the ways in which New Zealand trade mark jurisprudence protects cultural integrity while ensuring free speech. In so doing, we follow Sam Ricketson’s admonition that common law jurisdictions learn from one another.

This chapter considers the trade mark system established towards the end of the nineteenth century and already taking on many of its modern characteristics in the period up to World War I. It points out how Anglo-American and Australian law was shaped by a modern idea of the individual’s power and desire to establish, maintain and control personal identity, drawing on the world of signs. In part, this can be seen in the liberty allowed for registration of personalised signs that traders might wish to adopt and use to express themselves. But, there was another aspect, more focussed on the domain of resistance to labels, that was evident in the statutory restraints allowed on registration of personal names and images inter alia through specific provisions in the US and the Australian Trade Marks Acts of 1905. The latter restraints and their afterlives are the particular concern of this contribution to the volume.

This chapter examines how certain other forms of intangible assets, namely: patents, copyright, registered trade marks; and the benefit arising under a policy of life assurance, or a marine policy, may be dealt with by means of statutes specifically tailored for such assets. It compares the operation of such statutes to the operation of Law of Property Agt 1925, section 136(1).