Intellectual Property (IP)
Intellectual Property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, and names and images used in commerce. IP may be protected in law by way of trade marks, copyright, Protected Olympic insignia and major sporting events indicia and images once they take a tangible form.
More information about intellectual property can be found via the following organisations’ webpages:
IP Rights at the border
Import provisions under the
Copyright Act 1968,
Trade Marks Act 1995,
Olympic Insignia Protection Act 1987 and the
Major Sporting Events (Indicia and Images) Protection Act 2014 allow the Australian Border Force (ABF), under certain circumstances, to seize goods that infringe copyright, trade marks, protected Olympic expressions and relating to major sporting events indicia and images. These provisions give rise to Australia's Notice of Objection Scheme.
What is a Notice of Objection
A Notice of Objection is a legal document that allows the ABF to seize imported goods that infringe copyright, trade marks, Olympic expressions and related major sporting events indicia and images.
Notices of Objection are lodged by IP rights holders (or in some cases authorised users) who are concerned about the potential damage to trade, reputation and profits that may result from the importation of goods that infringe their IP.
IP rights holders with a Notice of Objection in place are commonly referred to as ‘objectors’.
A Notice of Objection must be accompanied by a Deed of Undertaking. This is a formal undertaking by the objector agreeing to repay the costs resulting from any seizures made (i.e. transportation, storage and destruction costs).
A Notice of Objection under the
Copyright Act 1968, Trade Marks Act 1995, or Olympic Insignia Protection Act 1987 is valid for four years. A Notice of Objection under the
Major Sporting Events (Indicia and Images) Protection Act 2014 is generally valid for one year or less, depending on the commencement of the Notice.
A separate Notice of Objection is required to protect copyright, trade mark, protected Olympic expressions, or indicia and images for major sporting events. A Notice of Objection can be re-lodged to ensure ongoing protection, or withdrawn at any time if no longer required. A Notice of Objection will no longer be valid should the Notice expire.
In order to be enforceable, a Notice of Objection must be registered with the ABF and reference a current trade mark registration. Trade marks are valid for ten years once registered with IP Australia.
Relevant guides and forms to lodge a Notice of Objection are available at the end of this web page. See our list of companies with a current
Notice of Objection in place.
When are goods seized under the Notice of Objection Scheme
The ABF seize goods that:
- are subject to customs control
- are covered by a valid Notice of Objection
- appear to infringe IP rights
- are intended for commercial purposes
What happens when goods are seized by the ABF
When goods are seized the importer and the objector or legal representative will be notified in writing; the date of issuance of the seizure notice signifies the commencement of the claim period. The claim period is ten working days from the date of notification. The importer must make a claim for the release of the seized goods within the claim period.
A ‘working day’ means a day that is not:
- a Saturday
- a Sunday
- a public holiday in the Australian Capital Territory
If no claim for release is made within the claim period then the goods are deemed forfeited.
If the importer makes a claim for release of the goods within the claim period, the objector will be notified (this signifies the commencement of the action period) and they will have ten working days to:
- commence legal action
- consent to the release of the goods to the importer
If the objector does not commence legal action within the action period the ABF must release the goods to the importer subject to all other legislative requirements being met.
Should the objector commence legal action, the ABF will hold the seized goods pending final determination by the courts on whether the goods infringe a rights holders IP rights.
This determination by the courts will make an order that the goods be:
- released to the importer
- forfeited to the Commonwealth
If the goods are forfeited, the ABF will dispose of the goods as directed by the relevant delegate, usually by destruction.
Got a tip
We encourage all objectors and members of the general public to provide information that will assist the ABF to identify and intercept suspected infringing goods. Please complete the below form B253 and send to iprights@abf.gov.au.
Further information
For further information regarding the Notice of Objection Scheme, please contact the Intellectual Property Rights team by emailing
iprights@abf.gov.au.
Guides
Fact sheet
Forms
