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A basic guide to copyright and trademark

Recently we were approached by a potential client to help them develop their startup. Having already spent a good deal of time and money elsewhere; they had a name, a logo, registered a URL and even built a website.

 

Of course we were interested and took the first step. However, within five minutes on IP Australia’s website we discovered someone already owned their name! They were fortunate in that they came to us when they did because this discovery saved them from wasting more time and money, developing and launching a brand they could not own and would eventually face costly litigation and/or licensing fees for breach of trademark.

Caught up in the thrill of a startup it’s easy to see why entrepreneurs neglect this critical component. This post offers a brief introduction to understanding intellectual property to avoid these costly mistakes.

 
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Intellectual Property

Intellectual Property is a legal reference to all published work originated or authored by individuals or companies – just about everything they create can be considered to be their intellectual property. And like all property, it has an intrinsic value. The reason IP is valuable is because it defines individuality, products, services, even the culture of an organisation. The most obvious expression of IP is a company name and logo and organisations like Coca-Cola vigorously protect them.

Legal protection

Copyright and trademark law is designed to protect the intellectual property rights of the originator of the work, or the owner of the copyright or trademark. It is a legal framework which recognises ownership and offers an opportunity to seek damages from those who seek to exploit it.

     
    The four most common symbols used to denote intellectual property

    The four most common symbols used to denote intellectual property

     

    What is copyright?

    Copyright is commonly symbolised with a circle containing a ‘C’ – ©, or as a ‘C’ within a set of brackets – (C). Ownership of copyright is automatically assigned to the originator from the moment the work is created and fixed within a tangible medium.

    It is not mandatory to display the symbol, nor is there a requirement to officially register ownership, though in some countries there are benefits to doing this, such as avoiding ‘orphan work’, where the owner cannot be determined or is uncontactable.

    What is trademark?

    Unlike copyright, trademarks require registration through an appropriate authority. In Australia, this is IP Australia; in the UK it’s the Intellectual Property Office; in the USA it’s the United States Patent and Trademark Office.

    ‘Trademark’ is symbolised with a ‘TM’ which indicates an entity has been submitted for registration. It may be attached to the entity, typically on the righthand side – Entity™. Successfully registered trademarks use the symbol of an ‘R’ contained within a circle – Entity®. Sound can also be trademarked and is symbolised with a ‘P’ contained within a circle – Sound℗.

    Whilst the symbols do not need to be displayed, it is an outward show of ownership which encourages respect for your trademark. It can also be useful to demonstrate you’ve displayed the (R) symbol when engaged in a dispute. It is against the law to use the (R) device if formal registration has not been given.

    What can be protected

    Literature: Unique words, phrases, company names, tag-lines, articles, stories, poetry, books and documentation.

    Visual material: Logos, visual expression, unique shapes, art, photograph, illustration, sketch, typographic arrangement, colour, shape, movies, television, interfaces, products and games.

    Smells: You can even register a fragrance – think of Chanel No.5.

    Sounds: Songs, musical scores, advertising jingles.

    What can’t be protected

    Ideas: You can’t protect an idea, but you can protect the expression of it. For example, you can’t protect the idea for a machine which sucks up dirt from a carpet, but you can protect the unique expression of how it works (such as Dyson’s Cyclone vacuum cleaner).

    Facts and discoveries: A scientist who’s found a new form of life can’t copyright it because discovery is not an act of authorship. However, if they create a new form of life, it can be.

    Copyright misconceptions

    It’s often wrongly assumed copyright ownership is automatically transferred along with the item on payment of invoice. For example, if you buy a painting from an artist, you own the painting, but you do not own copyright and the right to sell postcards and posters of the artwork. Unless an agreement has been negotiated, the artist retains ownership of copyright.

    A licence giving permission for exploiting the work beyond the purpose for which the item was purchased must be sought from the owner. Much as you would with an image you buy from a photo library; you select the image you want and use it according to the terms of the licence agreement.

    Trademark misconceptions

    Trademarking is an independent system to copyright. For example, it is possible for the originator of a piece of work to own copyright, whilst the trademark (when registered) is owned by a someone else. Equally, you can own a registered business name (and the Australian Business Register will not allow another business to have the same name), but this does not give the organisation exclusive rights to use the name as a trademark. Only through registering it as a trademark do you have these rights.

    Buying ownership

    For a variety of reasons, you may wish to own copyright. This requires the originator to transfer ownership which can attract a fee usually more substantial than the purchase of a licence or even the fee paid to commission the work. This is because when ownership of copyright is relinquished by the originator, they lose all rights as to how the work can be used and any fees, royalties or compensation the image might earn forever. The originator is then obliged to seek authorisation for use from the new owner and potentially pay for the privilege.

    Do you need to own copyright

    It really depends on how valuable that item is to you. Given the pace of change is so fast, it can be argued there’s little need to buy copyright for work you’ve commissioned. Simply using the work under the terms of the licence may suffice, because next year you may wish to use something new to keep things fresh. That said, you may wish to repurpose the work. It’s always worth talking to the owner of the copyright for changes in how you wish to use the work.

    Use an expert

    Other than our own first-hand experiences Propella does not pretend to be IP experts. We always recommend using the services of an IP lawyer, such as Blair Bevan. It is possible to deal with your own intellectual property, but there are complexities, such as which categories or countries you should register in.

    More information can be found online at IP Australia, or for some bedtime reading, look no further than Owning It – by Sharon Givoni which provides a comprehensive (and comprehensible) introduction to copyright law.

     
     

    Talk to us today if you’d like to know more about intellectual property and how it can help you protect your most valuable assets.