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Intellectual Property Law for Charities: Protecting Your Brand

As a charity, you may find it useful to establish a brand presence and distinguish your cause from other bodies. Intellectual property (IP) is a property right that can help achieve the objective of protecting your brand. These IP rights are intangible, meaning they are invisible to the naked eye and cannot be physically touched. Once granted, IP rights are protected nationally in all states and territories. This article will explain how copyright and registered trade marks can be beneficial to protecting your brand as a charity.

Understanding Types of IP Rights

There are several types of IP that are commonly used in Australia. These are:

  • copyright, which protects art, writing, music, film, and computer programs;
  • patents, which protect inventions and new processes;
  • trade marks that protect logos, words, and other branding;
  • registered designs, which cover the unique visual appearance of a product to prevent unauthorised use of its shape or configuration; and
  • plant breeder’s rights, which protect the commercial rights of new plant varieties.

Importantly, proper IP protection gives you exclusive rights to your brand. This means that manufacturing, selling or distributing counterfeit products is illegal. Similarly, other organisations or businesses cannot use similar signs or branding to your own. Exclusive rights also allow you to buy, sell or license your rights to others. As a result, IP rights are clearly a valuable asset that, as a charity, you should consider enlisting. 

Identifying and Protecting Your Brand

Your brand is what makes your charity distinctive. Brands build trust with customers who recognise your organisation and know who they are dealing with. 

It is common for charities to rely on copyright and trade marks to protect their brand image. You may use IP to safeguard company property such as domain names, website content and logos. Below, we explain copyright and trade mark protection in more detail. 

Copyright

Copyright is a property right founded on a person’s creative skill and labour. In Australia, copyright law is governed by the Copyright Act 1968. There is no registration system for copyright; as an author or creator, you automatically receive protection when you produce the work. Therefore, you may find copyright protection useful if your charity makes works such as informative articles or uniquely designed fundraising materials. Importantly, you should display the copyright symbol © by the work, using the owner’s name to do so. 

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 their burgers and the ‘golden arches’ logo. 

You cannot register certain everyday words, phrases and images except under exceptional circumstances. For instance, it is usually impossible to register a trade mark for common surnames and geographical names. 

In Australia, you should ensure you 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 IP Australia and paying the relevant fees to show your trade mark is in some way novel; and
  • having the application examined and subject to public inspection. 

From start to finish, the registration process takes at least 7 months. Once granted, a trade mark lasts up to 10 years before you have to renew it.

Once a trade mark is registered, you gain an enforceable right that you can use to stop others from using the unique identifier. Some other benefits of a trade mark that it grows in value over time and gives you the right to place the ® symbol to deter others from using it. Without a trade mark, there is a risk that you may have to re-brand if another charity takes on your image. If this happens, changing your brand can be time-consuming and expensive.

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Protecting Your IP Overseas

Registering IP in Australia does not automatically protect your charitable 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. However, some factors you should generally consider are: 

  • 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 charities have registered their trade marks overseas. According to the Australian Intellectual Property Report 2023, the most popular destinations for Australian applicants seeking overseas trade mark protection were:

  • New Zealand;
  • the United States;
  • China;
  • the United Kingdom; and
  • the European Union.

Enforcing Your IP Rights

In most cases, infringement of IP rights is dealt with in civil court and is not a criminal matter. You would need to sue for copyright or trade mark infringement. If successful, a court can award you compensation and an order to stop the infringement.

However, selling counterfeit goods is a crime and carries a penalty of up to 5 years’ imprisonment, a fine or both. For breaches of trade mark law such as these, you may seek the assistance of the Australian Federal Police and state and territory police. 

Key Takeaways

As a charity, it can be essential to protect your brand and ensure your cause remains distinctive and recognisable. IP protection gives you a legal monopoly over your own idea. Protecting your brand involves registering with the Australian Government or an overseas government if doing business abroad. This idea should be novel to qualify as IP; for instance, the word, phrase, or image should be unique. Once established, copyright and trade marks eventually expire and must be renewed. In most circumstances, you can legally enforce your IP rights by suing in civil courts. However, there may be occasions when breaching trade mark law is a criminal issue.  

If you would like assistance with IP protection for your charity, contact our experienced intellectual property lawyers 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 on 1800 485 860 or visit our membership page.  

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Sukrit Sabhlok

Sukrit Sabhlok

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