To increase their chances of success with their businesses, every entrepreneur should have a solid understanding of trademark and copyright law. No matter what industry the business is in, protecting intellectual property is a first step to protecting the business that you have created. Below, we set out the five most important things entrepreneurs should know about trademarks and copyright.

1. Copyright is Automatic

In Australia, copyright is inherent and automatic in any work that is original and tangible. Copyright gives the owner of the work a set of rights, including the right to reproduce, publish, perform, adapt or communicate the work to the public.

As the copyright owner, you have the right to enforce your ownership if you catch somebody else using your work without consent. Infringement of copyright can consist of a third party exercising the rights that belong to the owner, importing the work for sale or hire or by permitting a public place to be used for the performance of copyrighted work.

2. Copyright Infringement

The Copyright Act 1968 (Cth) sets out different regulations for different types of work as to what does or does not constitute infringement. The legislation sets out acts that do not constitute infringements specifically for literary, dramatic and musical works, computer programs and artistic works. For example, specific to computer programs, the reproduction of the work for security testing does not constitute an infringement of copyright. Depending on the type of work involved in your business, it is recommended that you have checked the Copyright Act to understand what is and is not an infringement.

3. Moral Rights

Many people are not aware of the fact that with copyright comes moral rights, which are also automatic and are conferred on the individual owners of a copyrighted work. These rights are in addition to the other rights to reproduce and use their work given by copyright.

Moral rights is essentially comprised of three key rights:

  • The right to have attribution of authorship;
  • The right not to have authorship falsely attributed;
  • The right of integrity of authorship.

These moral rights also carry its own remedies in case of breach, including damages, declarations, injunctions and public apologies.

4. Not just for Business Names

Often, business owners will assume that they can only trademark the logo or name of their brand. A trademark is actually the mark that sets your products or services apart from others. This could be a number, word, sound, smell, shape, phrase or more, as long as it is the distinguishing mark for your business. For example, Burberry has registered its well-known checked pattern as a trademark.

Some owners will often register both the logo and the word included in their logo as a trademark to more broadly protect their trademark.

5. Be Active

Trademark registration lasts for ten years from its filing date. However, if you do not use your trademark for a continuous period of 3 years, then it can be removed for non-use. This is most often the case when another party wishes to register a similar trademark to yours and is unable to do so because of your registration. If you have not been using your trademark, the other party can strike your trademark off the register and register it as their own instead.

Key Takeaways

Protecting your intellectual property is important; copyright and trademarks are the two most common and easily accessible forms of doing so. Having an understanding of the above key points will ensure that you are aware of the common misconceptions of copyright and trademarks and be able to more effectively protect your business.

Lachlan McKnight
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