Internet and ecommerce, News Alerts, Privacy

News Alert

Your online activity a target of increased surveillance

old man privacy listening in

On the 5th August 2014, the federal government announced its plan to implement new laws by the end of the year that will require telco’s to capture and store information about your online activities via your metadata.

The amendments to the existing telecommunication interception laws is justified by the government’s perceived need ‘to combat home-grown terrorism and Australians who participate in terrorist activities overseas’.

So what is metadata? Essentially “metadata”  (or “communications data”) is defined in two ways:

  • Information that allows a communication to occur
  • Information about the parties to the communication

In other words, it includes sender and receiver information and the type of media used to make a communication (eg phone call, text messages, email) but excludes contents or the substance of a communication. However, the definition of metadata is still ambiguous and whilst URL’s are arguably intended to be excluded from the definition, evidence suggests that some telco’s are in fact providing URL use data to the extent that they deem the information to exclude the ‘content’ of the website.

Whilst the government being able to obtain metadata is not new, what is new is that there will now be a mandatory period of 2 years during which telco’s will be required to retain metadata. This new right of government agencies to be able to conduct mass surveillance, regardless of whether or not they suspect wrongdoing by a particular individual seems wrong to me. Even if the ambiguity as to what constitutes “metadata” is resolved, arguably metadata can be more telling about you than the content of communications themselves. A study by Stanford University students demonstrated that metadata can reveal vast information about an individual “including medical conditions, financial and legal connections, and even whether they own a gun”.

How do you feel about the government’s right to be able to conduct mass surveillance? Does the threat of terrorism justify it?

 

 

 

Brand Protection, Business Names, Intellectual Property, On the Blog, Trade Marks

Part 3: What’s in a trademark and (not) in a business name?

 

So far in this five-part series, we have discussed the importance of creating a strong brand through components such as your business name, your logo and tagline, and even the colours you use within your advertising materials. We have also considered how businesses and their brand identities can be protected by legal procedures such as trademark registration.

But are trademarks and business names the same thing? In short, the answer is no. Whilst registering either can give your business and brand elements of protection, trademark registration is the only way you can really be effectively and fully protected by the law.

What is a trade mark?

A trademark is a sign used, or intended to be used, to distinguish goods or services dealt with, or provided, in the course of trade by a person from goods or services so dealt with or provided by any other person (Trade Marks Act 1995, s17).

Commonly referred to as a ‘badge of origin’, essentially, a trade mark is a distinctive sign that is applied to goods or services to identify the source of those goods or services. There is no limit to what constitutes a ‘sign’ in trademarks law. Hence, it can be anything from your brand name to the design of your logo or even the colours of your brand.

As mentioned previously, trademark registration is one of the most effective ways to protect your brand in the market. Trademark registration means that you have an asset for your business which can be sold, licensed to others or used as a form of security. You can control the use of the brand and stop others from using it. Trademark registration also places the public on notice of your rights which can be an effective deterrent for would-be infringers.

What is a business name?

Simply, it is the name under which a business trades. It differs from a trademark in that it is a compliance requirement, not an asset protection tool. A business name must be used exactly as it is registered, but there are no exclusive rights in a business name. So, you have little to no rights to stop your competitors from registering and using similar business names.

Nevertheless, choosing a business name remains an important part of your brand creation strategy and will help in conveying the right image when attracting your core customer base. Having a distinctive business name will allow you to be easily identifiable from your competitors, as well as providing a flavour of the range and quality of the goods or services you offer.

Once you have decided on your business name, you will need to check it against the national Business Names Register. Here, you can search existing business names and enter information to ensure the name you want to register is available to use. However, be warned that the Business Names Register only searches for identical business names that are registered and is not an effective brand availability or clearance searching tool.

Before registering your business name, you should also establish that there are no trade marks already registered for it or in use in the marketplace. This could not only prevent costly legal procedures in the future, but will give you peace of mind that you have the exclusive rights to use your business name as a brand without infringing someone else’s brand.

So what is the next step?

As you know, here at Ethikate we are brand protection and trademark registration specialists. We can not only assist you to develop effective brand protection strategies during the brand development phase, but we can also guide you through the legal processes of implementing these strategies including registering your brand as a trademark.

Having a strong brand protection strategy is essential when it comes to safeguarding your most valuable asset, so contact us today to get started!

Want to stay up to date with our blog and all things brand and IP? Sign up today to receive our newsletter Ethikately IP directly to your inbox.

Brand Protection, Copyright, Intellectual Property, On the Blog, Trade Marks

Part 2: Safeguarding your brand: why you need a brand protection strategy

trade marks melbourne stand out branding

As we discussed in Part 1, in today’s increasingly competitive marketplace, having a strong brand is fundamental in establishing your business and its’ edge over your rivals. Once you’ve taken the time and effort to create a strong brand it is essential that you take steps to put in place an effective brand protection strategy.

What is a brand protection strategy?

Brand protection encompasses the measures taken to prevent someone from illegally making and selling a product, or offering services using a brand name owned by another company. In short, a brand protection strategy helps to safeguard your most valuable asset.

A good brand protection strategy will not only identify your prospects of registering and being able to protect your brand, but can mitigate your risk of infringing someone else’s brand. In turn this will lead to a more valuable brand, as well as saving you money in the long run.

How does brand protection work?

Brand protection starts with several legal processes that need to be completed correctly to ensure that you are fully compliant with, and covered by, the law.

Many start-ups and small businesses are of the misconception that registering a business name gives them the exclusive rights to use that name as their brand. However, the only way to ensure you have the rights to use your brand in the market is to get professional trademark clearance searches performed, accompanied by the right legal advice, and then to implement an appropriate strategy to ensure that you can maintain those rights exclusively.

Trademark clearance searching is an important risk management tool for business and should be done during the brand development stage. It identifies any potential issues early on and is a gauge for determining your freedom to operate in the marketplace using your brand. This can ultimately save thousands of dollars on unwanted expenses such as legal and rebranding costs.

Brand protection options

There are several legal avenues to consider when creating your brand protection strategy. We set out some key options for protecting your brand below.

Trademark registration

Trademark registration is one of the most effective ways to protect your brand in the market. Under the Trade Marks Act 1995, trademark registration grants businesses a statutory right to exclude others from using the trade mark for the goods and services for which it is protected. The registration can be renewed perpetually every ten years, and protection is Australia-wide.

A trademark registration can protect most elements of your brand. It can protect the brand name, a tagline or phrase, product packaging or shapes (including the product itself), a logo or pictorial design, brand colours, a scent, a sound and even a movement that is distinctive of your brand! The options for trademark registrations are not limited as long as the trademark is distinctive, is being used in trade and does not describe the type, kind of location of the goods or services that you are selling.

Most importantly, a trademark registration means that you have an asset for your business which can be sold, licensed to others or used as a form of security. You can control the use of the brand and stop others from using it. If you sell goods you can even arrange for customs to stop counterfeit or otherwise infringing goods entering Australia. Trademark registration also places the public on notice of your rights which can be an effective deterrent for would-be infringers and can save you the cost of actively trying to stop them using a trademark that is similar to yours.

Misleading or deceptive conduct

It is illegal for a person to engage in conduct, in trade, that is likely to create a false impression about goods or services in the marketplace. This is referred to as misleading or deceptive conduct under Australian Consumer Law and State equivalents. Misleading or deceptive conduct is not restricted to written words; it can constitute spoken words, images and even gestures. A company can engage in misleading or deceptive conduct through the actions of its employees or agents.

Passing off

Passing off is an action recognised by the courts under ‘common law’ and can be used to enforce both registered and unregistered trademarks. Passing off protects your business reputation and goodwill built up through your brand, from unauthorised use of one or more elements of your brand (or something similar) that wrongly implies some kind of association or affiliation with your business. This action is particularly important where your brand or a similar version of it is applied to inferior goods or services. Passing off has similar elements to the misleading or deceptive conduct provisions under Australian Consumer Law, though arguably there are greater obstacles to overcome in order to be successful in passing off. Further, unlike trademark registration, protection is limited to the geographic region where you trade and so if you are only trading in say, the greater Melbourne area, it is going to be very difficult for you to stop someone using a similar brand outside of Melbourne. Further, you must be able to prove that you have a significant reputation in your brand which can be costly, impractical and often unrealistic for small business.

Copyright protection

Copyright is the recognition of a person’s right to protect their original, intellectual effort (eg a logo design). In Australia, copyright is automatically protected under the Copyright Act 1967 for a term of 70 years post-death of the creator of the work.

Copyright protection is Australia-wide and to some extent global, via international treaties and conventions. Copyright often subsists in a logo and so it is important to ensure that you own the copyright in your logo by having it assigned to you when outsourcing the design. However, copyright will not stop people from using your brand name or other elements of your brand that lack originality. This is one reason why you need a more complete brand protection strategy that covers all distinctive elements of your brand.

How to get started

Not sure where to start? Don’t worry! Here at Ethikate we specialise in brand protection. We will work closely with you to create a tailored protection strategy that not only addresses your specific business needs and future plans, but is also cost-effective. Find out more here.

Stay tuned for Part 3…

Brand Protection, On the Blog

Part 1: What is a brand and what is a “good” brand?

What is a brand?

In today’s increasingly competitive marketplace, having an effective brand strategy is fundamental in establishing your business and its’ edge over your rivals.

But what exactly does the term “brand” mean? In a nutshell, your brand is you and embodies your promise to your customer. It tells them what they can expect from your products and services and conveys how you want to be perceived.

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