Getting legal advice

How to protect your intellectual property online

The online world can give your brand a big boost, but it’s also fertile ground for intellectual property (IP) abuse. To determine the best ways to reduce your risk, we spoke to Suzie Leask, Associate Director and intellectual property specialist at Australian Business Lawyers & Advisors (ABLA).

Knowing your IP

Whether it’s via your website, e-commerce platform or social channels, the online arena offers countless ways to build your brand, share information and engage stakeholders.

But there’s a downside to all this exposure, namely the risk of someone stealing or copying your ideas, inventions or brand identity. Plus, there’s the very real possibility that you could inadvertently do the same.

Your intellectual property or ‘IP’ is quite likely one of the most valuable assets on your balance sheet, helping to differentiate you from your competitors. So, how should you conduct yourself in the online world to keep it safe and stay on the right side of the law? And what can you do if your IP has been infringed?

New playing field – old rules

Particularly at a time when everyone is sharing everything online, there’s plenty of room for confusion around IP rights. But, as Leask says, “The playing field may have changed, but the laws are still the same, so it’s about applying those laws and IP protection principles to a new arena.

“The first step is being very clear about the types of IP you have as a business, as that drives how you protect it. You’ll need to consider everything from your business name and logo, your unique designs and ideas, down to authored materials,” says Leask.

Safeguarding your brand

When it comes to protecting your brand online, a registered trademark is the most powerful option.

“You might have a great business name and logo and you’ve registered a matching domain name, but that doesn’t give you exclusive rights over a mark – only registration with IP Australia will do that,” Leask explains.

Until you have that protection, you’re not only at risk of people using your brand name but, if it’s already a registered trademark for someone else, you could be breaching their IP.

“That’s where we see people getting hit with cease and desist letters. Because if you’re on Google, Facebook or Instagram etc., it’s very easy for companies to find businesses using a name or logo that’s similar to theirs.”

To guard against this, Leask says it’s about being proactive and searching all the relevant registers and platforms – and making sure you do this upfront before you commit too much time and money.

Lawyers can do those searches for you and identify any potential opposition to your mark and possible ways around this.

The perils of oversharing

Leask advises similar caution around new inventions, ideas or designs, no matter how tempted you are to share them with the world.

“You could jeopardise your ability to claim a patent or design before you even file an application, and even copyright law won’t apply until works are expressed in material form.”

Updating customers and followers with company news is one thing, but it’s important to keep new concepts out of the public domain until your ownership is confirmed – “This means no tweeting, Facebooking or posting on LinkedIn.”

You can still talk to investors and future business partners about your ideas, but it’s important to have rigour around those conversations. “Using non-disclosure agreements at those early stages will help to ensure that material remains confidential,” Leask says.

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If in doubt, ask

Given the sheer volume of content on the internet, copying other people’s work has become almost commonplace. From a legal standpoint, however, the rules are pretty clear.

Whether it’s an image, report, recording or other applicable work, Leask says, “this is someone’s creation – they’ve authored it in material form and you’d need to get their consent to use it, and presumably give them credit. Assuming there are no exceptions regarding fair dealings, unauthorised use of a substantial part of the work may constitute a breach of copyright.”

Of course, there is room for interpretation, but it’s always best to play it safe. So, before you post someone else’s image or content on your site, or social channel, Leask says, “find out who owns the copyright and, if necessary, pay a licence fee, which will typically give you the right to use it for a specific period. In practical terms, it’s about credit where credit’s due.”

Enforcing your rights

On the flip side, if you think someone has infringed your work, what can you do?

“The first step is to consider whether any exceptions apply in terms of fair dealing. If not, think about what you want,” says Leask. “You could reach out and ask them to credit you as the author and add a link to your website. You could also send a letter of demand requiring they take it down, or pay you for the use of the work and/or the profits they’ve made. Alternatively, you could try and agree on a licence fee so they can continue to use it – it can be a very commercial discussion. Then your last course of action is to pursue legal action for breach of copyright.”

A word of caution, however, before you make allegations of infringement. There are provisions under both the Copyright Act and the Trade Marks Act that deal with groundless threats of legal action.

“You have to be really sure that you do own the IP, that no exceptions apply (under the Copyright Act) and that you have grounds for making those claims,” warns Leask. Big penalties can apply if justification can’t be shown, particularly if you cause damage to someone’s business or reputation.

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