Page 62 - Retail World March 2021

LEGAL COPYRIGHT VERSUS TRADE MARK To ensure you’re protecting the assets that are paramount to your brand, it’s important to know the distinction between trade marks and copyright, and to take measured, proactive steps towards protecting your intellectual property. BWy Gladwin Legal partner Rosalyn Gladwin. hen deciding on how best to protect your intellectual property (IP), there are different types of IP to consider, which include copyright and trade marks. The danger with having so many different types of IP is that some businesses can get confused, thinking they own a particular brand and logo simply because they have created it, or that they are protected broadly when they have a registered a specific trade mark, which is not the case. Your business’s IP is one of the most valuable assets it will own. It will be how your customers recognise, remember and become loyal to your brand. IP also enables businesses to prevent any copycats from infringing on your branding and products. So, protecting your IP is crucial, and this requires a knowledge of the difference between trade marks and copyright. What is a trade mark? If your business has a logo, phrase, colour scheme or name that is distinctive and used to identify its goods and services, you should take proactive steps to prevent your competitors from using those features themselves. A trade mark is a ‘sign’ that is registered and operates as a distinctive mark associated with your brand and products. The features that make your brand unique should be registered in relation to the goods and services that your business provides, with some room for expansion. Your trade mark will act as an indicator to your customers, promising a consistent quality and experience if they see this trade mark being used in other products. By securing a registered trade mark, you’ll receive exclusive rights to that name/phrase/logo and remove the potential for competitors to benefit by copying or passing off as your business. It also ensures that those competitors won’t be able to dilute the perception of quality your brand has garnered in connection with your brand name. A trade mark in Australia gives you 60 RETAIL WORLD MAR, 2021 10 years of protection for the use of that trade mark exclusively in relation to the registered goods and services. When deciding whether to trade mark your brand name, the less descriptive your brand name is, the greater protection you’ll likely be able to obtain in your trade mark registration. We recommend using a strong and distinctive brand name that isn’t currently being used by competitors or able to be confused for a competitor by consumers. What is copyright? Copyright provides an automatic protection to a person who creates an original piece of work (ie, text, artistic works, sound, films and computer programs). It precludes others from copying, reproducing, adapting or distributing the copyrighted material without the copyrighter’s permission and, depending on the nature of the copyright and the author, can apply for 70 years after the death of the author. A good example of copyrighted materials may be the content on your business website. The danger is copyright can be difficult to establish and enforce, as there is no registration process. It’s also very limited in what can be copyrighted. It’s important to obtain legal advice as to whether your product can be protected by copyright and how best to enforce it. For example, having a clear copyright statement can enforce your rights in no uncertain terms and prevent avoidable disputes. The key differences • Most notably, copyright applies automatically in Australia, whereas trade marks must be registered. • Copyright typically operates throughout the author’s lifetime plus 70 years after their death, whereas a trade mark will be registered for 10 years, with the option to renew. • Copyright leans towards protecting works such as books or art, whereas trade marks aim to protect your business’s brand. What about internationally? Trade marks An Australian trade mark won’t be afforded the same protection as an international trade mark if an infringement occurs internationally. While your business may be based in Australia, if you’re offering goods and services internationally, you should consider registering your trade marks with the trade marks office in each applicable country or through a World Intellectual Property Organisation (WIPO) registration. Copyright International copyright protection is essential for your copyright works to retain their value and prevent duplication by international businesses. Australia is party to an international treaty, the Berne Convention. Countries that have signed this treaty have unified copyright laws in their countries that will extend their copyright protection to other signatories. Parties to the Berne Convention You can view the list of parties to the Berne Convention on the WIPO website. About Rosalyn Gladwin Rosalyn is the principal of Gladwin Legal, being an expert in all facets of retail law, including commercial and corporate law and retail leasing. About Gladwin Legal Gladwin Legal is the law firm for retailers. As experts in retail law, the firm understands the legal matters that challenge retailers daily. Its areas of expertise include retail and commercial leasing, supply and distribution agreements, intellectual property, ecommerce and IT agreements, sale of business and competitions and trade promotions. Get in touch at gladwinlegal.com.au.