Advertising: There are many different types and methods of advertising and creatives, ranging from cheap to expensive. Advertising methods could include newspaper advertisements, flyers and social media. The ACCC has rules and regulations in place that govern advertising, including not presenting false and misleading statements, and these should be complied with for all advertisements.

Brand Protection: A business’s brand is one of its valuable assets. Protecting the brand is important to prevent others from unfairly exploiting the brand name or from imitating it without consent. The most effective form of brand protection is through trademark registration.

Copyright: Copyright is an automatic and inherent right for owners of original works in Australia. Copyright protects the expression of an idea but not the idea itself. It gives the owner the exclusive right to use, reproduce, publish and communicate their work. Copyright also brings with it automatic moral rights for individual owners.

Design Registration: A design can be a shape, configuration, pattern or ornament. Design registration is a form of IP protection that will allow you to protect your design for industrial or commercial use as long as it is new and distinctive. Before applying for design registration, ensure that you have searched widely online to ensure that a similar design has not already been registered.

Employment Agreements: This is the binding legal agreement between an employer and an employee that sets out the obligations and rights of both parties. Crucially, it should address key terms such as the period, remuneration and termination. The contract can also set out a requirement for the employee to follow guidelines further set out in an Employee Handbook.

Fast Fashion and Knockoffs: Fast fashion refers to the fact that designs nowadays move quickly from the catwalk to the store. Cheap knockoffs from high-end designs are common. To best prevent this, it is prudent to protect your creative work. The most effective way to achieve this is by registering a trademark since trademarks can protect a garment’s pattern or colour. Copyright, while automatic, does not go the full extent of protecting the actual garment.

Guarantees, Warranties & Indemnities: Under the Australian Consumer Law, guarantees, warranties and indemnities must be provided to any person you supply goods or services to, and they cannot be contracted out of. This applies to any business or individual providing goods and services to others.

Jurisdiction and Disputes: In the event of a dispute about your work or a good you have supplied, knowing which jurisdiction applies is necessary. The Australian Consumer Law applies to all businesses operating in Australia, hence across all jurisdictions. However, if it is an IP dispute, note that trademarks registered in Australia are only enforceable in Australia. To have a trademark enforced overseas, you must separately register it in each country you wish to enforce it in.

Kim Kardashian/Character Merchandising: Also known as celebrity endorsements, this is a marketing technique used to appeal to consumers who may have a particular attachment to a celebrity. The technique creates an association of the product with the character and intends to create a desire in the consumer to purchase the good or service. While a common technique, it is important to ensure that you do not engage in misleading and deceptive conduct.

Licence Agreements: Licences are a way to allow another party, the licensee, to use your IP in exchange for a fee and royalties. There are three key types of licences:

  • Exclusive licence
  • Sole licence
  • Non-exclusive licence

All licence agreements are contracts, and both the licensee and licensor are bound by the laws of contracts. The key aspects of a licence agreement are the conditions and royalties, which set out the main obligations of the licensee.

Mergers: Mergers are when two or more brands are unified under one label. The Competition and Consumer Act 2010 (Cth) prohibits mergers that would have the effect of substantially lessening competition in a market. Parties have the option of notifying the ACCC when a merger has been agreed upon.

Patents: A patent is a method of IP protection given to a new invention. This includes any device, substance, method, or process that is new, inventive and useful. A patent gives the owner a set of exclusive rights to use the invention for commercial purposes. Patents can be either Standard or Innovation patents.

Privacy Policy: A privacy policy is between your business and each person you collect personal information from. Privacy policies will set out what personal information your business collects, how it is used and when it could be disclosed to third parties. Online businesses with a website will, in general, have a privacy policy on their site which serves as a disclosure on how the business intends to use the personal information of visitors to their site.

Quarterly Profits and Losses: Although creatives and finance are usually not included in the same sentence, it is important for creatives to have financial literacy, particularly if you want to start your own business. A basic grasp of accounting obligations, profit and loss statements and balance sheets will help in understanding the stage and potential for growth that your business has.

Retail Leases: Retail leases are a type of commercial lease and is governed by State and Territory legislation, e.g. the Retail Leases Act 1994 in NSW. A retail lease is usually with regards to premises that are wholly or predominantly to be used or retail shop businesses. It is essentially a legal document that sets out the rights and obligations of the owner of a commercial property and the lessee. Each state has unique exceptions as to what does or does not count as retail.

Social Media: This has changed the way creatives use, advertise and sell their products and creations. Social media is an important part of the online strategy for creatives and can be used effectively to promote their goods to a large audience. The most important aspect of social media is to ensure that nothing that is advertised is misleading or deceptive and to have IP protection in place before exposing your work to the public.

Supply Agreements: Most businesses that supply or receive goods and services will require a supply agreement to be signed beforehand. Supply agreements should contain clauses addressing the details of the goods, delivery of goods, limitation of liability and the intellectual property rights. Regarding intellectual property, it is usually recommended to use a licence rather than assign all rights over to business.

Trademarks: A trademark is a type of IP protection given to any sign that you use to distinguish the products and services of your business from other businesses. Trademarks can apply to words, numbers, slogans, logos, images, shapes, scents, sounds or a combination of the above. While trademarks can exist without registration, registering your trademark will provide certainty regarding legal protection and ensure you are recognised as the owner. This is the most common form of intellectual property protection that owners will use.

Website Terms of Use: These are a set of terms that govern how your website is to be used. It is crucial to have this as it explains to your visitors how they can and cannot use your website. Important terms include limiting liability, indemnity, prohibited conduct and intellectual property protection. These terms should be reviewed and updated when necessary and cover all online activity.

Anthony Lieu

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