It is understandably frustrating when someone tries to copy your Intellectual Property (IP). In this article we have outlined some key steps to both stop and prevent people from stealing your IP.
Okay, so firstly, what is Intellectual Property?
IP is a form of property, however it is intangible property (although that’s not the ‘I’ in IP). Just like someone can own a house, a car, or a guitar, IP is a form of property that an individual or entity can own, and it can be licensed or sold.
For many businesses, their IP is perhaps their most valuable asset.
Some examples of intellectual property are as under:
- Trade marks
It is highly likely that the person reading this may in fact own one or two forms of IP. In Australia, there is no system of registration for Copyright material – if you create an original artistic work in material form, you will have created copyright. For example, simply taking a photo is creating a copyright work, or recording yourself singing the song you wrote in the shower, is copyright material.
For businesses, their documented systems and policies for operation often form copyright material. It is these systems and policies that form the basis of a franchise system when we act for businesses turning into a franchise.
One of the most important forms of IP is a trademark. When it comes to your business, it is certainly important that people know who they are looking for when they want to buy your goods or services. The name of your business is, perhaps, the most valuable intangible asset, and that is why it is so important to protect your brand by way of a trademark.
What is a Trademark?
A trademark is a sign used to uniquely identify a good or service as being associated with a company or individual. A trademark is anything from a logo, shape, colour, scent, or even sound. Owning a registered trademark helps businesses distinguish themselves from their competitors, and if a competitor were to use a logo, shape, colour, scent, name or sound that is deceptively similar to your trademark, that is when trademark infringement occurs.
When is it a Trade mark infringement?
Not every time someone uses a trademark similar to your trademark is it trademark infringement. Someone is only using your trademark in an unauthorised way, giving grounds to bring an action for trademark infringement, when they are using either a deceptively similar trademark to yours, or a trademark that is substantially identical to:
a) Offer the same or similar products and services; or
b) fall under same trade mark class.
Here are two steps to prevent and stop trademark infringement.
Step 1. Register your Trade mark
The first step to protect your brand against infringement is to register your trademark in each country you are trading. IP Partnership Lawyers can assist with trademark applications both in Australia and around the world.
Step 2. Draft a cease-and-desist letter
The second step is to enforce your trademark. If you become aware a party is infringing your registered trademark, naturally they need to stop immediately. This is what lawyers call ‘cease-and-desist’. Often cease and desist letters can act as a precursor to legal proceedings so most companies will engage a lawyer to help draft a cease and desist letter, and it is something here at IP Partnership Lawyers we can certainly assist with.
In the cease-and-desist letter, you will need to prove that you are the owner of the IP, how the other party has infringed your rights and outline a timeline for the recipient to respond and the steps required.
Those steps may include paying you for any profits they received from selling goods or services by reference to your registered Trademark. We also advise ensuring the cease and desist letter encloses a statutory declaration, by the infringing party, swearing that they will not engage in any further activities that may be a breach of your rights under the trade mark act.
What happens if they violate the cease-and-desist order?
If a cease and desist letter is ignored, the next step is to file proceedings in the Federal Court for Trademark infringement. Your lawyer will advise you on the remedies available to you, which may include an account of profits, an injunction, and punitive remedies (particularly where a party was made aware of the infringement and simply ignored and continued with their unauthorised use of the trademark).
Here at IP Partnership Lawyers, our team of solicitors are experts in Trademark registrations and enforcement. We also assist clients with Trade mark oppositions, non-use application, adverse reports and removal of Trademarks. Please see contact us to discuss further.
This blog provides general information and is not intended as legal advice specific to your circumstances. Please feel free to seek our professional legal advice if you have any particular questions, concerns, and/or queries.