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Twitch is fast becoming one of the biggest streaming platforms for content creators. Like all social media platforms, intellectual property considerations are not always clear for users. This article will break down the trade mark considerations that you should think about if you are a content creator or a business looking to use streaming platforms like Twitch or Facebook Live.

What is a Trade Mark?

Essentially, a trade mark is any sign you use to distinguish your goods and services from other businesses. A ‘sign’ could include a business or product name, logo, slogan, icon, colour, shape, scent, or sound. For most businesses, a trade mark will come in the form of a name or logo.

In the context of online streaming, your username or handle could be a trade mark, particularly if your viewers refer to you by name. If you are also using the same name on other social media platforms (i.e. Instagram and Facebook), you are using the name as a sign for viewers to search and find your content. If you use a particular icon or logo across your social media and streaming platforms, this is another sign that viewers may associate with your brand.

Do You Have a Trade Mark Already?

You do not need to register a trade mark to have one. You may have a common law ‘unregistered’ trade mark simply by using it. This means that the trade mark exists because you have been using a particular sign enough that you can establish it has a reputation in the marketplace. However, if you allege unauthorised use of this trade mark, you will have the burden of demonstrating that your trade mark has a reputation.

Registering your brand name or logo as a trade mark will provide you with a monopoly to use the trade mark concerning the goods and services claimed under that registration. This means that, while you have the exclusive right to use a word or image, it will only ever be in relation to a finite list of goods and services. 

Should You Get a Trade Mark?

You should consider registering your trade mark to prevent others from making unauthorised use of your brand. Registering a username on a social media or streaming platform is not the same as registering a trade mark, and will not be enough to allege trade mark infringement. A registered trade mark entitles you to exclusive use of your sign concerning the goods included in the registration. Additionally, with a registered trade mark, you can defend against any infringement claims by other businesses. 

When alleging infringement, you can simply point to the registration as evidence that your exclusive trade mark rights exist. In some cases, this may be enough for the infringing party to cease using your trade mark. 

Are You Infringing Someone Else’s Trade Mark?

If you are streaming on a platform like Twitch, you are more than likely using another business’ trade mark descriptively (i.e. you may identify the game you are playing while streaming). Descriptive use of a trade mark is usually not considered trade mark infringement. However, you must use the trade mark in good faith, and only use it to describe the game or product. 

Other Potential Intellectual Property Considerations

Trade marks are not the only form of intellectual property (IP), and each type of IP has different types of protection. A logo may be a trade mark and also have copyright protection at the same time.

It may be confusing to try and remember all of this, so you should consider seeking additional guidance from a lawyer to help explain in a way that is specifically relevant to your situation. 

Key Takeaways

As the world of online streaming grows, so too does the importance of protecting your intellectual property on these platforms. Your streaming name may constitute a trade mark, and you should take steps to protect it through formal registration. You must also be aware that you are using other peoples intellectual property when streaming. You must use this fairly and solely in a descriptive manner.

If you need help with trade marks, our experienced intellectual property lawyers can assist 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 1300 544 755 or visit our membership page.

Frequently Asked Questions

Can I use other peoples intellectual property while streaming?

There are certain circumstances in which you can. For example, suppose you are playing a video game and want to insert the name of the game into the video title. This is allowed, so long as your use is fair and purely descriptive, and you do not claim or imply that you created the game. However, other circumstances may constitute trade mark infringement, so you should consult a trade mark lawyer if you are unsure.

Should I register a trade mark?

A registered trade mark comes with many benefits. For example, you will have the exclusive rights to use your logo or business name, and you will be able to protect these from any other streamers who attempt to copy them. Therefore, we recommend the formal trade mark registration process for protecting your assets.

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