Protecting your intellectual property is the smart thing to do. Design Train encourages the registration of valuable logos, trading names and by-lines. Surprisingly, it’s relatively simple to do and can be completed online. In more difficult circumstances you should seek the advice of an IP Attorney with your application. If the name is central to your business and it draws customers then trade marking is important.
Contents:
- Copyright is a very powerful protection
- Trademarks
- Top 10 branding tips (relative article)
- Branding (relative article)
Note: Information supplied on this page is as is. We are not legal advisers and suggest you always consult a lawyer or IP Attorney before doing anything.
Copyright is a very powerful protection
Copyright, trademarks and Intellectual Property
Intellectual Property (IP) comes in varying styles. Essentially all items created – ‘creative works’ – such as manuals, articles, marketing materials, graphics, photographs, etc. Such works are protected by the IP Right (IPR) of ‘Copyright’ law, literally – ‘the right to copy’. Normally, if you create the work you have the right to copy it and have the right to allow other people to copy it.
We want our clients to understand that even though you commission Design Train to design your artworks, you are only issued with a license of use for that design. Under Copyright law we still own the copyright itself. We do, however, negotiate transfer of copyright to clients who are interested in controlling their own IP.
Copyright is a very powerful protection. It is protected by the same laws that have made some great money for Microsoft, Disney and Elvis Presley (yes, although dead or left the building, he’s still making much more money than you’d expect). | top
There are 3 basic things business people should know about copyright:
- It is automatic. No registration or form or words is required to create a copyright work. It is protected as soon as it’s produced, provided that it is original.
- Protection lasts for the life of the originator, plus 70 years
- It’s international. Copyright stretches across borders and the advent of the free trade agreement between the US and Australia has further strengthened rights and laws.
Copying ‘original’ creative works is a ‘copyright infringement’. One of the best ways to understand how to protect your work is to know the types of defences that infringers (ie. other business owners) use:
- “You gave me permission”. This can be implied, which is a big problem. Design Train will always only give permission in writing
- “You copied me” or, more simply, “Prove you own it”. We can always prove origination with our internal design development
- Another defence often raised is: “I didn’t know it was copied”. However, copyright infringement does not need intention – the act is enough. So if they say this, there’s a case.
The main thing you can do to protect your copyright work is to use a copyright notice – © <your name> and <year> is enough. You do not need to register and there is no charge to do this. Just type it in. Put it in wherever you can. This warns people that they are dealing with your copyright work and to ‘keep away’ | top
In fact, why not use this copyright notice: © <your name> <year>. All rights reserved. No part of this work may be reproduced in any material form or communication by any means without permission of the copyright holder.
The reality is, people may still copy your item. However, legally you have a better standing and higher probability of success. It may make others think twice before they infringe with your work. Design Train take copyright infringement seriously and have, in the past, pursued legal damages for infringement.
Here are three other ways to ensure that you are protected:
- Don’t assign your copyright work as that means you cannot use it again without permission unless you’ve negotiated this. How do you know if you are assigning the work? Well, basically, it is by signing something containing the word “assign” or “assignment”.
- Licence your copyright works in writing. This enables you to limit the use to a certain time, country or medium
- Watch out when you produce creative works for a government department. You may be very pleased to get the contract but you may have just given away some of your best ideas | top
Trademarks
The best thing about trademarks is that it stops your competitors copying the unique way you do something. In the case of any business, it’s very important. There are 2 kinds – TM and ®.
When someone is considering whether or not to instruct an IP Attorney to register a trademark on their behalf they will probably check the IP Australia website which is user friendly. It offers a procedure which is a simple three step program.
- Complete and submit a simple application form to the Trademarks Office and pay a fee
- An examiner
a) searches to find out if there is another mark which is deceptively similar being used for similar products and services
b) decides if your mark is capable of distinguishing your goods or services - The mark is advertised and if there is no opposition then it is registered three months later. Generally it is yours forever, provided that you pay the registration fee every few years and continue to use it | top
Protect your point of difference
Here are three points about the application process.
- Expect your examiner to be a person who would like to give you the trademark (“the mark”) but for reasons there can be difficulties. They need to ensure that there isn’t a monopoly over generic words and phrases.
- Examiners may reject your application outright or raise a difficult question regarding the application. They may consider the application ‘not distinctive enough’, ‘capable of distinguishing’ and ‘no direct reference to the character and quality’. This may seem confusing, however it’s part of the examination process. An IP Attorney can help with this process and is worth the investment if the trademark is integral to your business.
- The last part of the process is the three month advertising period. This can cause people using similar names to come out of the woodwork and you may end up with an objection | top
Here are the last 3 potential issues you may face once you have registered the mark:
- You have registered the mark in the wrong class or missed a class that covers a particular (usually profitable) activity. There are 42 classes, being lists of words, describing goods and services. It is a little long list so be patient.
- Trademarks usually apply to one country, so if you have not registered it in other countries it may be too late as someone else has registered the mark.
- If you don’t use the mark properly, for say three years, it can be taken off you. A competitor will often helpfully start this procedure.
The way to avoid these problems is to get legal advice before you apply. You will be advised to have a pre-application search – do it. This will save you from applying for a mark which has no chance of success as it is so similar to a mark being used by another. Once you explain your business plans you’ll be advised of the class(es) to register into and other countries if necessary | top
