If you’ve decided to take the first step into starting your own business, or like Kat, you’ve decided to take on your side gig full time – congratulations!
One of the most important things to do when starting and running your own business is to learn how to protect your brand, because this underpins all that you do in your business. A strong brand helps you to feel confident in the services or products that you provide and ultimately leads to a better and stronger business.
Protecting your brand is about protecting your Intellectual Property (IP) rights under the law. We’re going to focus on 3 key types of IP rights in this blog:
1. Trade Mark
1. Trade Mark
A trade mark is used to identify and distinguish between your products or services from your competitors. One common misunderstanding of trade marks is that it only applies to your logo – this is not the case.
A trade mark could be a word, phrase or picture, or a combination of these (for example, Nike’s “Just Do It!” is trade marked). It could even be a sound, smell or movement, such as Microsoft’s Windows logo animation sequence.
If you have a registered trade mark, this legally provides you with exclusive rights to use, license and sell the trade mark. It’s important to recognise that until the trade mark is registered, you don’t have these exclusive rights. Have you ever noticed that some signs or labels have a TM attached? This is used by businesses to identify potential trade marks that they may wish to register, however the mark itself has actually not yet been registered, meaning that legally it is not yet protected. Only brands using the ® symbol signal a registered and protected trade mark.
Registering your trade mark is important in order to protect your brand from others looking to copy or benefit from your brand without permission. If somebody does this, then this may be an infringement of your trade mark. Under the Trade Marks Act in Australia, a trade mark is infringed when:
someone uses as a sign a trade mark that is substantially identical to or deceptively similar to your trade mark;
the infringement is in relation to the same types of services or product that you sell; and
the infringement must also be shown to be likely to deceive or cause confusion to consumers.
If someone has infringed your registered trade mark, you may be able to go to court and apply for an injunction to stop them. However, practically, you may have alternative solutions to try to resolve a trade mark infringement.
For example, Facebook has its own policy on trade mark infringement which sets out 3 requirements to be met. If you can show your trade mark has been infringed on Facebook, you can report this to Facebook directly and Facebook may remove the infringing content.
Copyright is the protection of the original expression of ideas, although not the ideas themselves. This usually applies to things such as books, films, music and artwork. Works that are protected by copyright means you have the exclusive rights to license it to others in order to copy, publicly perform, broadcasting, publishing or adapt it. The good news is that in Australia, once an idea or creative concept is documented on paper or electronically then it is automatically protected by copyright.
Under the Copyright Act, copyright infringement includes the following, when (without the licence of the copyright owner):
a person does or authorises the doing of any act comprised in the copyright;
a person sells or hires out the copyrighted work; or
a person publicly exhibits or performs a copyright work.
It’s important to understand that copyright doesn’t protect you against the independent creation of a similar work. In general, the person infringing your copyright should have an awareness of the existence of your copyrighted works. If someone has infringed your copyrighted works, you may be able to apply for an injunction or to recover damages, but you actively have to go out there and stop them.
Under IP law, a design is what makes a unique product look the way it does and includes looking at the product’s shape, configuration, pattern and ornamentation. To be protected as a design right, your design must be registered.
A registered design will give you exclusive rights to commercial use, licence or sell your design. However, while having a design right will be great to protect your brand for certain products and under certain circumstances, it’s also good to keep in mind that design registrations are a lengthy and costly process and you might need to obtain professional advice from various professionals (such as a marketing consultant and a lawyer) in order to complete the design registration process. Generally, having a design registered is mainly useful and recommended if your product has an industrial or commercial use.
But what about when you have your brand protected? How can a Client Agreement help you do business confidently?
So having understood the 3 different types of IP brand protection, what is the best way to protect your brand and your business when dealing with clients? This is where a Client Agreement will be useful. A Client Agreement can clearly set out the boundaries between you and your client, including:
what you do and don’t do as part of your services or products;
how payment will be made; and
how your IP (i.e. your brand) is protected.
Having a Client Agreement in place with each client means that you can be confident that your brand and business is well protected. This will allow you to focus solely on providing the best services or products to your client and will allow you to better grow and strengthen your brand.
If you are looking to register your trade mark or design, have a Client Agreement drafted or have any questions about your legal rights with regards to the protection of your brand in general, please feel free to contact us over at The Remote Expert and we will be happy to help or have an obligation free chat
Lawyer (and my amazing guest blogger for this month), Emma Heuston runs a virtual law firm for online businesses.
The Remote Expert do things a little differently to traditional law firms (which is why I love them). They’ll not only do your legals but will also support you while your service business grows and thrives.