Protecting you intellectual property
Infringement
When it comes to infringement of IP, it definitely pays to have a lawyer by your side. If you’ve been accused of infringing someone else’s IP, a lawyer can represent your case through common law. Success will depend on how much goodwill you’ve built up for your business and what the other party have done with the trademark. “Just because a trademark is registered doesn’t mean you can’t have it struck off for non-use,” explains Downie.
If another business infringed on your IP, a lawyer will draft a letter to let them know of the infringement and tell them to cease and desist. While it’s easy to think you could write a letter yourself, Downie warns of the concept of ‘unjustified threats’ and says it’s safer to let the professionals handle it. “A business is better run if it’s properly advised,” he says. “The lawyer may contact the third party directly to tell them to stop using the mark and if the back and forth doesn’t lead anywhere, you can sue.”
A good basic understanding of your IP assets can go a long way to finding adequate protection, so do a little homework before you start filling out registration forms and you can save yourself a lot of time and money
Tips to protect your Intellectual Property
1. Conduct a search for existing IP. This will ensure that you won’t infringe upon someone else’s IP.
2. Keep your IP confidential. You can do this through legally binding agreements with employees and suppliers.
3. Own your IP assets. Ensure your contract with external suppliers assigns all IP rights to your business.
4. Negotiate a fixed fee with legal professionals. Do this prior to engaging in their services to avoid unexpected cost blowouts.
5. Assert your IP rights. Use symbols such as © ® ™ and IP terminology to let people know you’re serious about your IP.
Case study: clothing label sues
One business owner who knows the value of protecting IP is Adam Richardson of UK clothing label WornBy (www.wornby.co.uk). Richardson recognised the need to protect IP and went straight to the World Intellectual Property Organization to start registering the brand internationally. He was advised to go into each individual category in each country to register the IP, which he found expensive. “We were a million-dollar business at the time and it was a $100,000 investment.”
However, WornBy did what they could to try and protect the brand legally and commercially by launching the label with a clear identity. “When we looked at IP in Australia and New Zealand, it was harder to get protection around many of the creative areas. That led to us protecting ourselves commercially first,” says Richardson. “We went for global protection by establishing ourselves in each territory.”
Richardson is currently fighting a worldwide lawsuit against similar-sounding brand WornFree for infringing copyright. The copycat brand started as Lost Propertee, and then launched itself as WornFree “using a graphic and brand presentation similar to ours,” says Richardson. The imitator also infiltrated the internet by directing searches for WornBy to the WornFree site.
“They then started copying our T-shirts and in some instances were going to some of our accounts saying they were the cheaper diffusion of WornBy. At every level we found ourselves creatively and intellectually mimicked,” he recounts. “The person who set up the company was a former employee of WornBy. He was a freelancer working for one of the design companies we used and he wasn’t under a restraint clause.”
In each country where both WornBy and WornFree trade, Richardson has employed local lawyers to initiate commercial litigation to recover damages to his brand. The lawsuits continue.