In Short:
- Protect your brand by registering intellectual property (IP) such as trade marks and copyright to prevent counterfeiting and infringement.
- Copyright is automatic in Australia, while trade marks must be registered and renewed every 10 years.
- IP protection overseas requires separate registrations in each country where you do business.
Tips for Businesses:
Ensure your branding is unique before applying for a trade mark to avoid rebranding later. Monitor social media for potential IP infringements and consider protecting your digital assets, such as virtual designs. Register IP in countries where you operate to avoid exposure to infringement risks abroad.
Brand protection in the fashion and beauty industry is crucial for maintaining image and revenue. It involves safeguarding business intellectual property (IP) against various forms of brand abuse, such as counterfeit goods. IP is a property right categorised into various types, including copyright, trade marks and patents. These rights are invisible to the naked eye and cannot be physically touched. Once granted, IP rights are protected in all Australian states and territories. This article will explain how copyright and trade marks can protect your fashion and beauty business.
Types of IP Rights
The most common types of IP in Australia are:
- copyright: protects art, writing, music, film, and computer programs;
- patents: protects inventions and new processes;
- trade marks: protects logos, words, and other branding;
- registered designs: covers the unique visual appearance of a product to prevent unauthorised use of its shape or configuration; and
- plant breeder’s rights: protects the commercial rights of new plant varieties.
IP rights are a valuable asset for individuals and businesses. Like any other property right, you can buy, sell or license it to others.
Identifying and Protecting Your Brand
Your brand is what makes your fashion and beauty business distinctive. Brands build trust with customers who recognise your organisation and know who they are dealing with.
Businesses frequently rely on copyright and trade marks to protect their brand image. Business owners use IP to defend property such as domain names, website content, and logos.
Continue reading this article below the formCopyright
Copyright is property based on a person’s creative skill and labour. In Australia, copyright law is stated in the Copyright Act 1968. There is no registration system for copyright. Instead, copyright automatically vests in the author or maker when the work is produced or made.
For most works, the duration of copyright is 70 years after the author’s death. There are exceptions to copyright for socially valuable purposes, such as research.
Trade mark
A trade mark is a word, phrase, symbol, sound or scent used to distinguish the source of goods or services. For example, McDonald’s has established trade marks that protect its names and logos.
You cannot register everyday words, phrases and images except under certain circumstances. For instance, it is typically challenging to register a trade mark for common surnames and geographical names.
In Australia, interested parties should follow the Trade Marks Act 1995 procedures to register a trade mark. Registration generally involves:
- searching to check if a similar trade mark is already registered;
- applying with the Australian Government agency, IP Australia; and
- having the application examined and subject to public inspection.
Once a trade mark is registered, the holder gains an enforceable right to stop others from using the unique identifier. Another benefit of a trade mark is the right to place the ® symbol to deter others from using your trade mark, which is an asset that grows in value. Without a registered trade mark, there is a risk that you may have to re-brand if another business takes on your branding. If this happens, changing your brand can be time-consuming and expensive.
This guide explains the essentials of trade marks and the steps required to register a trade mark.
IP Protection Overseas
Registering IP in Australia does not automatically protect your fashion or beauty brand overseas. If you operate all or parts of your business outside Australia, consider registering IP with the country you are doing business with. The steps to file for IP protection overseas vary based on the country but can include:
- international agreements such as the Paris Convention that allow the use of your Australian filing date in overseas applications;
- country databases to ensure there is no similar IP; and
- the application process of your target country.
Some well-known global businesses have registered their trade marks overseas. According to the Australian Intellectual Property Report 2023, New Zealand, the United States, China, the UK, and the European Union were the most popular destinations for Australian applicants seeking overseas trade mark protection.
Enforcement of IP rights
In most cases, IP rights infringement is dealt with in civil court. It is not a criminal matter. Accordingly, one would be required to sue for copyright or trade mark infringement. If successful, a court can award compensation and an order to stop the infringement.
However, selling counterfeit goods is a crime and carries a penalty of up to five years of imprisonment, a fine, or both. The Australian Federal Police and state and territory police deal with these types of breaches of trade mark law.
You should also include terms in your employment contracts stating that your business owns the IP that any workers create during their employment.
Emerging Trends in Fashion and Beauty IP Protection
As the fashion and beauty industry evolves, so do the challenges and opportunities in brand protection. One emerging trend is the increasing importance of social media and influencer marketing in brand building and protection. Fashion and beauty businesses must now consider how to protect their intellectual property in the digital realm, including content created by influencers and user-generated content on social platforms. This may involve developing guidelines for influencer partnerships and monitoring social media for potential infringements.
Another growing concern is the rise of fast fashion and its impact on design protection. With rapid production cycles and constant new releases, fashion businesses face increased pressure to protect their designs quickly and effectively. This has led to a renewed focus on design registration and enforcement strategies.
Sustainability and ethical practices are also becoming key factors in brand protection. As consumers become more environmentally conscious, fashion and beauty businesses are incorporating sustainability claims into their branding. This creates new challenges in verifying and protecting these claims and defending against greenwashing accusations.
Finally, the advent of NFTs (Non-Fungible Tokens) and virtual fashion is opening up new frontiers in IP protection. Fashion brands are exploring how to protect their digital assets and virtual clothing designs in the metaverse, raising novel legal questions about the intersection of IP law and digital realms.
Key Takeaways
Protecting your brand can involve registering your trade marks with the Australian Government or an overseas body if you are conducting business abroad. Your trade mark should be novel to qualify for registration. For instance, the word, phrase, or image should be unique. Once established, trade marks will eventually expire and must be renewed. Copyright in Australia does not need to be registered and receives automatic protection when the work is produced or made.
If you would like assistance with registering IP for your fashion and beauty business, our experienced IP lawyers can help as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today at 1300 544 755 or visit our membership page.
Frequently Asked Questions
Brand protection involves safeguarding intellectual property (IP) to prevent brand abuse, such as counterfeit goods, ensuring the protection of your business’s image and revenue.
No, registering IP in Australia does not protect it overseas. You need to register your IP in each country where you conduct business, potentially using international agreements such as the Paris Convention to simplify the process.
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