7 Legal Essential for Business Online: Part 1 – Copyright & Trademarks Online

Just because you can find it online, doesn’t mean it’s free!  Protect your business by having the right permissions for use of content on your website. If you create it yourself, you have less problems.

Software for the internet is so sophisticated and quick today that it is easy to find copied content. Companies that in the business of selling copyright, like Getty’s Images, automate their whole system so that they find the image you are using without permission, send you a letter demanding payment of a licence fee and follow up without necessarily needing human interaction.

Top 10 things you need to know about copyright:

1. Things like writing, video, music and images are able to be protected by copyright
2. Copyright is a bundle of different rights and can have different licence terms for use
3. Ideas are not protected by copyright
4. Names, titles, phrases etc are generally too short to attract copyright protection
5. Copyright automatically exists upon creation of the original work
6. Copyright does not need to be registered and you don’t need a © for protection
7. Copyright law is different in each country, but mostly consistent
8. Copyright usually belongs to the person who created the work, unless they are an employee
9. Copyright can only be transferred in writing
10. Copyright does eventually expire and then work becomes “public domain” and can be used by anyone

Case study: We had a client who received a letter of demand from solicitors on behalf of an overseas photographic artist. The same artist had initiated nine other court cases in Australian courts, so this wasn’t a demand to ignore. The client wrote back admitting guilt and apologising and was then surprised to get a demand for payment of $15,000 in licence fees.  Your immediate response to a letter like this should be – “I am getting advice and will get back to you by xx date.” Then get legal advice.  Because the client had already admitted guilt we were able to get the licence fee down to $1000 and resolve it without going to court.

If your logo has a creative element rather than a standard font, then it will attract copyright protection, and can also be protected by registering a trademark.

Top 10 things you need to know about trademarks:

1. Letters, words, phrases, numbers, logos, images, smells and sounds can be protected as trademarks
2. Protection under trademark law requires registration
3. Registration bodies are government or semi-government bodies
4. Not everything can be registered as a trademark, generic words or phrases will usually be excluded
5. You don’t have to register a trademark, but it’s easier to protect if you do
6. When you register your trademark it is only protected in your country of registration
7. It is easy to check for existing trademarks through IP Australia before settling on a company name
8. There are 45 categories for trademark registration, your only protected within the categories you register and every category attracts a fee
9. Trademark registration is valid for 10 years, then requires renewal
10. Trademark registration can be challenged and overturned if you don’t actually use the trademark

It is always advisable to assess your risk position before deciding whether or not to register a trademark. For start-ups, you may choose to delay an application for registration until your business is generating a cash flow to support it. If you are concerned a foreign company may bring in the same or a similarly branded product or service, check the trademark register to see whether or not it has already been registered, and if not, consider registering without delay.

Case study: Our client had been importing and marketing a particular brand of product for about four years before a foreign supplier decided they also wanted to sell to the Australian market. The foreign supplier registered the trademark then sent threatening letters to our client. We negotiated to continue the client’s business without interruption during a reasonable change-over period, rebrand and sell the client’s domain name to the registrant rather than participate in court proceedings. Our client didn’t lose any business and paid minimum costs.

Get support rather than operating blind in this area. You will have greater peace of mind if you are confident that you are using your own and other people’s intellectual property appropriately.

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Jeanette Jifkins is the founder and Principal of Onyx Online Law, an Australian based law firm with the focus of supporting businesses with an online presence. She has extensive experience with a broad variety of corporate and commercial issues including contracts, mergers and acquisitions, business structures, employment and governance.