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Q. I am in the retail clothing business and bought some stock from a number of manufacturers. Subsequently I was approached by solicitors from a designer accusing me of infringing copyright as I was selling her designs. What should I do in the circumstances?
A. There are a number of things but the first one is to retain an intellectual property lawyer to deal with this copyright issue. There are any number of questions which come to mind with one of the most important being whether there was any holding out by you whether these particular clothes were in fact designed by the other solicitor's client. Effectively the matter needs to be negotiated so that your position is fairly put whilst at the same time ensuring that you do everything necessary to prove that there has been no breach of copyright but you have to take the appropriate steps to cure this. Do not forget, if there has been a breach this can involve you in substantial costs including paying for the other party's legal fees.
Q. I have a unique concept which I want to protect and don't know what to do in the circumstances?
A. Ideas are not the subject of patents and therefore this protection is not available to you. Where you have a concept and it involves a design it cannot be protected if it is an idea. Where you have an idea it is the expression of that idea for which you can claim copyright. In order to further protect the expression of this idea it might be good to develop a trademark and have it registered.
Q. How is the Copyright Act 1968 protect copyright owners' risks?
A. Basically the Act gives copyright owners certain exclusive rights to promote creativity and innovation with respect to their works. Normally anyone wishing to copy or reproduce copyright material will need permission from the copyright owner. There are certain exceptions which enable certain classes of persons to use copyright material without permission for restricted purposes.
Q. With digital and other emerging technologies are there traps for the normal consumer apart from copyright owners?
A. Yes. Under new legislation the new amendments will not allow you, for example, to upload a copy of a song from the internet.
Q. Is cybersqatting on the increase given that so much business is now conducted over the internet through specific domain names?
A. Yes. The registration of domain names is fairly simple but it is managing the renewals which a business may have at any one time during its life cycle which causes problems. Obviously businesses need to invest time and money in a comprehensive brand management strategy to protect themselves in this area.
Q. How does cybersquatting normally arise?
A. There are any number of well-known names or brands which are instantly recognisable to the public. Cybersqatters capitalise on this by registering in bad faith domain names which can be confused with or almost indistinguishable from these brands. As a result they take traffic away from the legitimate owners of the brands as they serve to confuse the market place. One strategy is to register a name and hopefully sell it back to the legitimate brand owner at an inflated price.
Q. What should I do to protect my brand as my business is increasing annually and it won't be long before it is instantly recognisable?
A. Every business person or owner or company involved in the sale or marketing of goods and/or services should have a brand management strategy which should be totally comprehensive to ensure some level of real protection. One of the best ways of doing this is to closely align the business or company name and/or domain name and/or copyright of a slogan and to register a trademark to ensure the exclusive use of that name. Exclusivity is the key to your identify and therefore maintaining your market share.
Q. I have been running a business for a number of years and as part of my strategy I obtained a domain name but I have been recently contacted by solicitors acting for another party who indicate that I have infringed their trademark. What should I do?
A. Just because you have been operating a business for a number of years it does not necessarily mean that you have exclusive right to use that name. Obviously their client has a registered trademark for that name which provides them with exclusive rights to use the name in their area of business activity. Just because a domain name is available it does not mean that you cannot infringe somebody else's trademark. Even where this arises inadvertently as appears to be the case here it seems that you are infringing their trademark and obviously they are prepared to take action against you which would prove extremely expensive if you do not retain a lawyer early on to assist you with this matter.
Q. What happens if a business is already operating under a particular name and has a corresponding domain name?
A. First you should consider whether or not you really need this name and if you require exclusivity you trademark it.
Q. Is it easy to register a trademark in Australia?
A. No. You do not know what you are doing and you will not know what outcome you have achieved without seeking expert guidance and assistance. This area of the law is rather complicated and the services of a competent solicitor should be engaged for accurate guidance and assistance. It is of note that the Trademark Act 1995 provides broad grounds for a change in registration so that genuine competitors are not disadvantaged by registration of a mark which they may honestly need to use in the course of their trade or business.
Trademarks are distinctive symbols or marks that signify a particular outfit, organization, company or commodity. It is a referential sign that was created to signify a single source. The trademark was born basically to maintain and protect businesses, and to facilitate the presence of a particular company's set of goods on the market. In the international arena, the trademark's significance can be seen in the stock market, specifically.
The stock market cannot survive without trademarks. The acronyms and numerical assignations in the international stock market cannot exist without pre-fabricated trademarks- which brings us to the basic parts of a trademark.
In essence, a trademark may be the commodity or service itself, and the words and symbols that are appended to these products. There is a basic blurring between the commodity and the sign when it comes to determining specifically what a trademark is.
For example, Sony's Walkman series may be taken as a trademark- both the name of the series and the basic design of the music players are both trademarks and are both protected by the appropriate international treatises.
Trademarks carry a company's reputation, which is why international law and local state laws protect it. In the United States alone, the largest conglomerates would fight tooth and nail to protect a logo or a combination of a logo and words from dilution, appropriation or misuse. For example, another company may not use the well known symbol of Coca Cola.
How does dilution take place with a trademark? Let us identify first the basic parts of common trademarks: the most visible parts are of course the symbols and words themselves. Colors and font styles may also be protected by law- the signature Coca Cola ribbons for instance, may not be used by other businesses to advertise non-Coca Cola products.
Similarities may also be contested by pre-existing companies if similar trademark symbols suddenly come into being and challenge the singularity of what another existing trademark signifies. If confusion sets in, laws will remove another company's hold on their trademark.
The economics of the trademark
How does a trademark function in the global arena? Smaller corporations are not completely reliant on trademarks. But for the largest multinational players in the global market, trademarks signify either loss or victory.
Piracy may be the biggest nemesis when it comes to trademark infringement. Take the case of Nike, according to company statistics, not all the profit that comes from sales of commodities with the Nike trademark finds its way back to the company itself.
According to a company spokesperson, trademark infringement is “sort of having a restaurant, where half of the people in it are eating, but are not paying”.
Other similar losers in the trademark protection game is Microsoft- it has been estimated that in some countries of the world, the piracy rate is more than ninety-eight percent- with a meager two percent of sales that can be attributed to legal resellers and dealers. This bourgeoning problem has resulted in two significant steps for intellectual property.
These two steps include: harsher penalties for those caught in the actual act of trademark infringement and second, a revamped international campaign to combat piracy where it is mostly winning: in the minds and hearts of consumers everywhere.
The trademark has become so powerful that a simple “Pepsi” on a bottle would already be able to sell it to consumer bases that are already aware of Pepsi the company's long history. Because of this, trademark battles are still occurring endlessly across several industries - which prove just how potent a single symbol or a single word is in determining who makes profit, and who loses capital. This is a real war with real losses and hard-won victories.