As a business owner, you should always make an effort to avoid accidentally infringing on another person or business’s IP rights. It is always advisable that you seek professional advice from an IP lawyer in creating a strategy to help avoid some commonplace infringements.

Have you conducted a search?

As a business owner, you should be conducting a diligent search online before releasing to the public any new design for your business’s logo or products that may inadvertently infringe the rights of another IP owner. When in doubt, it is always good business practice to seek the advice of an IP solicitor.

Have you identified your own IP?

Your IP includes any copyright that may exist in any works you have created, as well as any registered rights like trademarks, designs, and patents. You also own business-related information, such as client lists and trade secrets. Knowing exactly what IP the business owns is the first step to avoid infringing the IP of another business. If you are unsure whether the business has IP in certain material then you should consult an IP solicitor and make the appropriate enquiries.

Are you maintaining your IP?

As a business you should ensure that you are always up-to-date with renewals of your registered IP. This would entail keeping track of any registers to which your IP is maintained, both domestically and internationally.

Do you have permission to use the material?

It is bad business practice to use any material that you have accessed either online or from another person without first seeking ‘clearance’, or permission from the owner of the material. If you are unable to locate the owner after having conducted a diligent search, you should ask an IP solicitor for advice as to the legality of the specific use of the material, especially if it is for some commercial purpose.

Have you kept all records of ownership?

It should become second nature to document any ‘clearances’ that the business has received, or any steps taken in confirming your right to use the relevant material. This is important in showing that the infringement may have been unintentional or innocent, as opposed to intentional. This would ensure that any liability the business faced could be minimised because of the active steps taken to avoid infringement.

The Copyright Act 1968, tells us that infringing knowingly is not necessary to proving infringement, however, it can certainly influence the outcome in terms of the damages a court may award. For example, if you have infringed unintentionally, and a court finds that you could not have infringed knowingly in the circumstances, they will not normally order that you pay damages, and instead, will order that your business repay the profits earned from the use of the material. An IP solicitor will clarify what is required to avoid these additional damages.

Conclusion

To ensure you don’t fall victim to inadvertently breaching the IP of another person or business, it is always recommendable that you seek the expert advice of an IP lawyer. Otherwise, you should always be prudent in searching for the owner of any materials that you don not own and that you seek to use. Make sure you keep the relevant records of any search you have conducted in finding the owner of the IP material, and any proof showing that you took all reasonable steps to do so.

Lachlan McKnight

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