When you’re running a business, thinking about someone else’s rights may not be your top priority. However, breaching intellectual property rights can have significant consequences. When the cheques start rolling in, someone’s claim to your intellectual property (IP) may take your hard-earned money away. This article outlines how to identify whether you’re breaching intellectual property rights before it’s too late.

Know Your Intellectual Property Rights

The first step is to determine what type of intellectual property rights you have. IP is an umbrella term used for different types of original ‘property’. This can be a name, an image, a product, technology, or even the know-how of your business. But just because you use it, does not mean it belongs to you. If you created it yourself, paid for it to be designed or bought the rights from someone else, then it most likely belongs to you.

However, IP may not belong to you if you:

  • used an online template;
  • don’t have the formal registration; or
  • paid for a licence rather than the exclusive rights.

Copyright

Copyright exists in any original work. You may be infringing on someone else’s copyright if you copy, alter, or use their work. In some cases, using something just as inspiration may be too much. Contrary to popular belief, there is no 10% rule to avoid copyright infringement. The legal test is whether you are reproducing a substantial part of the original work. If you’re trying to work out whether or not you have infringed someone’s copyright, consider whether there are any elements of their work that are blatantly obvious in yours.

Patents

A patent can protect a device, substance, method or process that is new and inventive. Depending on the type of patent that covers the invention, the applicant will own the exclusive rights for 8 to 20 years. If you’re manufacturing something that is similar to an existing product, it’s a good idea to conduct a Freedom to Operate Search. If your invention acts and functions in the same way as the original product, you may be breaching a patent. As patenting is a very specialised field, it is important to seek the assistance of a patent attorney when comparing your invention to an existing product.

Designs

Design registration protects the visual appearance of a product, rather than the way it works. You can only enforce designs certified by IP Australia. If you have based your designs on someone else’s work, you could be breaching their intellectual property. Even if you have created it yourself, check the IP Australia Design Register first.

Trade Marks

A trade mark is any sign, such as a name, logo, or slogan, used to distinguish a product or service. If your new business sign seems strikingly similar to someone else’s, it’s a good idea to check the Trade Mark Register.

However, some trade marks are not registered but the owners still have rights under common law. It is more difficult to determine whether you are infringing on an unregistered trade mark but the best thing to do is to come up with a unique sign that everyone will associate with your brand. The best trade marks are ones that are distinctive and unusual for their industry. It makes them less likely to be copied by (or to be a copy of) another a trade mark, and more likely to be approved for registration by IP Australia.

Public Domain and Creative Commons

The internet makes it easy to breach intellectual property rights with everything available at a click of the mouse. This does not mean that everything on the internet is free. However, certain material has been released into the public domain and is free to use. You may even find some work available under a Creative Commons licence. Creative Commons is an international not-for-profit organisation that provides a platform for intellectual property owners to share their work with the public by way of a licence.

Key Takeaways

Do your homework. Before you start promoting your brand or labelling your products, take the time to research the patent, design, and trade mark registers to make sure your idea is original.

Go for inspiration, not duplication. If you have an idea based on someone else’s work, make sure that it is not a substantial reproduction.

When in doubt, ask for help. If you’re not sure whether you’re in breach of someone’s intellectual property rights, get in touch with LegalVision’s IP lawyers by calling 1300 544 755 or by filling out the form on this page.

Alexandra Shaw
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