Uncategorised

What NOT to do when you suspect an IP Breach

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By Kate Ritchie, Ethikate Principal Lawyer and Trade Marks Attorney

For an entrepreneur, suspected idea theft is the stuff of nightmares. However, business owners need to keep a cool head in the face of an alleged IP breach to avoid being sued and further damaging their reputation and brand.

Whether revealed via a social media search, at a trade fair, or reported by confused and loyal customers, discovering that someone is using similar branding or has a product on the market that is almost identical to your own can be a heartbreaking experience.

When faced with assumed Intellectual Property infringement, it can be tempting to immediately get on social media in the heat of the moment and have a good old rant about the situation. However, by doing so entrepreneurs risk making grossly incorrect legal statements about the alleged infringer, which is potentially damaging to their brand’s reputation. If the suspected infringement isn’t actually a breach, it could also open the accuser up to being sued for misleading or deceptive conduct under Australian Consumer Law, or even defamation.

A high profile example of this is the case of Seafolly Pty Ltd v Madden [2012] FCA 1346 (29 November 2012). Swimwear designer Leah Madden, trading as White Sands, reportedly posted a succession of Facebook posts and sent emails to reporters accusing Seafolly of plagiarism.

Seafolly then sued Ms Madden on the grounds of misleading and deceptive conduct and false representations; injurious falsehood; and copyright infringement. In 2012, it was reported that Ms Madden was found guilty of engaging in misleading and deceptive conduct and was ordered to pay Seafolly $25,000.

As hard as it may be, it’s important that entrepreneurs take a breath in the face of a suspected IP breach and never make public comment about the situation. It’s also important to avoid contacting the alleged infringer directly.

The reality is that it’s not always easy to prove an Intellectual Property infringement. Enforcement bodies look at a range of factors when determining if a breach has occurred. In the case of a trade mark, this includes examining what protections are in place, whether the trade mark is registered and where and the scope of that protection. If there isn’t any formal protection in place, enforcement bodies can also look at things such as prior use and whether there is significant goodwill and reputation built over several years that would lead people to instantly connect you as the source of the brand. Other considerations include whether the trade marks are deceptively similar and whether there is evidence of that deceptive similarity. For example, would customers get confused by the similarity? Would they get the names mixed up? Would they assume the trade marks are related? Have there been phone calls to the wrong business because of the similarity or has work been diverted because of confusion?

Proving IP infringement is not always a clear cut process. Getting plain English advice from a specialist IP lawyer who cares about your business but has a healthy level of objectivity about the matter is a great first step in the face of a suspected breach.

Engaging a specialist from the beginning to not only register a trade mark, but to put a wider brand protection strategy in place for your business can also help you to be more informed about the process and to avoid the heartache and financial losses involved with an alleged infringement.

Ethikate offers a range of affordable packages specifically designed for startup founders and small businesses, including our $199 Initial Consult package. If you have any questions about Intellectual Property, Trade Marks and Brand Protection, feel free to get in touch. We’d love to hear from you!

About Kate Ritchie

Kate Ritchie is a strategically focused Principal Lawyer and Trade Marks Attorney with both commercial and business services and legal experience. Kate has broad ranging competency in all aspects of legal services including intellectual property law, brand protection, commercial and business transactions, negotiation and alternative dispute resolution, internet law, privacy, competition and consumer law and sports law. Kate has worked with top tier commercial law firms such as Clayton Utz and high profile companies such as Thiess Pty Ltd and Tatts Group. Kate founded Ethikate in 2014 with a passion for providing specialist advice and services in Intellectual Property Law, Trade Marks and Brand Protection Strategies, business and commercial law and entertainment and media law for startups, entrepreneurs and small to medium businesses. For more information visit www.ethikate.com.au.

A similar version of this article is also available on the Kochie Business Builder’s website here.

Uncategorised

Why Bother Trade Marking? Here’s Why…

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By Kate Ritchie, Ethikate Principal Lawyer and Trade Marks Attorney

The initial stages of launching a business are generally very exciting. Seeing your idea brought to life and starting to build your brand is an exhausting, but exhilarating, process. Sometimes in all of the excitement, some of the seemingly boring, but crucial, steps in protecting your business are forgotten or pushed to one side.

Intellectual property protection and registering a trade mark often fits within this category – seen as too complicated, too expensive and just too hard.

Or perhaps another small business owner who has registered a trade mark, but doesn’t have a foundational brand protection strategy in place, posts about a negative IP infringement experience online and you’re left thinking – why bother trade marking?

In reality, there are many important reasons to register a trade mark and the extent and quality of the protection depends on numerous factors specific to each business.

Here are Ethikate’s top five reasons to register a trade mark in Australia:

1. National Protection for Your Brand

Registering a trade mark provides you with national brand protection, even if you don’t yet have a reputation or presence in a particular region of Australia.
For example, we’ve had clients with no trade mark registration come to us to try and stop someone in another state or city from using the same brand name in the same industry.

Unfortunately, in the absence of any prior reputation in that location, there’s not much a business can do to stop a competitor from doing this.

2. Protection from Claims of Trade Mark Infringement Being Made Against YOU

As a small business owner the cost of defending a claim of trade mark infringement can ruin you. By having a trade mark registration others can’t sue you for trade mark infringement in relation to the goods and services for which your trade mark is registered.

3. Create an Asset For Your Business

Trade mark registration creates an asset for your business that can be sold, licensed (and franchised) or secured. Anyone can copy a business idea that isn’t protected by intellectual property, but if you have a trade mark no one can copy it if it is identical or deceptively similar. Your registered trade mark can become the most valuable asset of your business.

4. Exclusivity

No one else can use your trade mark or anything deceptively similar for similar or related goods/services to yours. This means that you will be able to have a distinctive brand that stands out from the crowd. Exclusivity does not extend to a monopoly over all goods and services in every industry. However, if those goods and services are similar or closely related to yours and there is a risk of consumer confusion, then you are well within your rights to oppose it/stop them from using and registering it.

5. Enforcement

Having a registered trade mark will usually make it easier to stop others from using a similar brand for related goods/services. For example, a trade mark registration shows that you are the exclusive owner of the trade mark. Businesses are much less likely to challenge/ignore a cease and desist notice, social media platforms are more willing to remove infringing pages/sites, domain name recovery can be easier and if you sell products, then you can give notice of your trade mark registration to Customs who monitor for any counterfeit products entering the country.

These are just key reasons to register a trade mark. As a small business owner, you may not always be in a financial position or good legal position to stop all who you believe are infringing your trade mark. However, registering a trade mark puts you in a much stronger position and empowers you to make that choice.

About Kate Ritchie

Kate Ritchie is a strategically focused Principal Lawyer and Trade Marks Attorney with both commercial and business services and legal experience. Kate has broad ranging competency in all aspects of legal services including intellectual property law, brand protection, commercial and business transactions, negotiation and alternative dispute resolution, internet law, privacy, competition and consumer law and sports law. Kate has worked with top tier commercial law firms such as Clayton Utz and high profile companies such as Thiess Pty Ltd and Tatts Group. Kate founded Ethikate in 2014 with a passion for providing specialist advice and services in Intellectual Property Law, Trade Marks and Brand Protection Strategies, business and commercial law and entertainment and media law for start-ups, entrepreneurs and small to medium businesses.

For more information visit Ethikate or contact the team at Ethikate to book in for your first consult with Kate.

News Alerts, Uncategorised

We’ve moved!

News alert: Ethikate has a brand new HQ!

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I am very excited to announce that Ethikate has a brand new Melbourne headquarters in the gorgeous St Kilda Road Towers, just a stone’s throw away from the CBD and surrounded by the gorgeous Albert Park, South Melbourne and Prahran inner city suburbs.

For those who had visited our old HQ at the World Trade Centre on Flinders Street you will recall that it lacked a certain Ethikate style to it. It was beautiful but far too beige for our liking!

Our new suite at St Kilda Road Towers is hard to miss – decked out in Ethikate branding and colours it oozes professionalism yet is playful and fun.

What I’m really excited about though is that we will be showcasing local artists in our reception area and meeting room over the next 12 months with our first artist Renzo Hubbard exhibiting his natural talents on our walls.

So if you haven’t seen the new HQ yet contact us or drop by and enjoy a coffee and some beautiful artwork! In the meantime, here’s a preview.

See you soon!

Kate Ritchie, Principal Lawyer & Trade Marks Attorney

Ethikate, Suite 404, 1 Queens Road, Melbourne, VIC 3004

P +61 3 8548 1800 E hello@ethikate.com.au

www.ethikate.com.au

Copyright, News Alerts, Privacy

In the News…The Dallas Buyers Club case changes the legal landscape for privacy and copyright.

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Illegally downloading films to watch at home? Guess what, you can no longer hide behind your ISPs to avoid legal liability.

In a recent landmark ruling, some of Australia’s largest internet service providers (ISPs) were forced to provide Dallas Buyers Club LLC (Voltage Pictures) with the names and addresses of more than 4,700 of its service users who allegedly downloaded and/or shared the 2013 Oscar winning film Dallas Buyers Club on file sharing services including BitTorrent.

The ISPs – most notably iiNet, but also including Internode and Amnet Broadband and others – had previously refused a request to provide the information, claiming that Voltage Pictures had engaged in a practice iiNet’s chief regulatory officer called “speculative invoicing” ahead of the lawsuit. During the case, iiNet’s lawyers accused Voltage Pictures of using discovery letters to threaten those who had infringed its copyright into making settlements.

The judge who presided over the case is yet to determine the level of compensation Voltage Pictures can demand from individuals. He will also be approving the correspondence to be sent to the service users. His Honour further stipulated that a condition of the ruling was that the identities of the alleged ‘pirates’ remain confidential.

The decision to grant the order has already been described as landmark, and a huge step in the battle against global online piracy. The case is particularly interesting as it marks a much more aggressive stance on internet piracy and online copyright infringements by rights holders.

The case also raises an intricate legal matter – where two sets of rights come into direct conflict: the privacy rights of customers protected under Part 13 of the Telecommunications Act 1997 and rights holders’ exclusive copyrights under the Copyright Act 1967. However more on that in another blog.

Now that we know that there are enhanced legal avenues for copyright owners to identify and therefore take action against infringers, lets talk a little about online copyright infringement, piracy and how you can protect yourself and your business.

What is online copyright infringement and film piracy?

Online copyright is a term that refers to the protection of certain ‘works’ that are published on the internet. Some of the most common examples of copyright material includes films, music, art and literature such as e-books, blogs and website content. Copyright automatically vests in the author, upon creation of the works (unless the author is an employee or there is a written agreement to contrary). So, the very moment you upload your blog, your work is protected by copyright, assuming of course that it meets the relatively low threshold for copyright protection. More on that later.

Film piracy refers to the act of downloading, copying and distributing film without permission from the rights holder. With the rise of the digital age, there has been surge in film piracy because well, it’s just so easy for end users to download music and films from the internet. Using peer-to-peer sharing and streaming sites, like BitTorrent, is a form of film piracy and by using them you are violating the copyright of the rights holder. So, just because you can, doesn’t mean you should…or that it’s legal for you to do so!

Protecting your online collateral and respecting the copyright of others

In Australia, copyright is automatically protected under the Copyright Act 1967. Copyright protection is Australia-wide – and to some extent is also protected in overseas markets, where countries are parties to certain conventions and treaties that recognise copyright created in Australia. Copyright exists for a term of 70 years, post death of the author of the works. You don’t need to register copyright in Australia (despite what some less than desirable ‘copyright registration companies’ claim). In fact there is no official avenue to do so. As the owner of copyright, you have the exclusive benefits of being able to commercialise, licence, sell, reproduce and adapt your works, amongst other rights set out in the Copyright Act.

The rise of the digital age is wonderful for both innovation and competition. Start-ups, entrepreneurs and small businesses now have access to a global platform where they can sell, advertise and promote their business and compete directly with the top end of town. Unfortunately the flipside of this is that online collateral is more vulnerable to unauthorised use, and readily available content and images online can lull business owners into a false sense of security as to their right to use the online content or images as part of their own collateral. By the way, whether or not you know you are infringing copyright is no defence to liability for copyright infringement. I repeat, just because you can, doesn’t mean you should…or that it is legal for you to do so.

If you are sourcing online content and images, make sure that you are obtaining the content and images under licence or with the consent of the owner and make sure that your use is within the parameters of the licence or consent. There are plenty of royalty-free databases for images and online software programs that will allow you to easily check text or blog posts for possible plagiarism offences. If in doubt, seek advice before using third party material or, don’t use it – as I’ve mentioned, there are so many ways to use authorised material and to obtain a licence that there’s really no reason to take unnecessary risks. Remember, you work hard to create your original and unique material so respect that others do too and, if you want to use their content get the necessary consents and licences to do so.

On the flip side, you should also consider a monitoring system for your own brand and collateral as part of your overall online protection strategy. Online monitoring can include inspection of domain names, social media profiles and digitally published content such as blogs. Not only will this help to protect the integrity of your collateral from would-be infringers, but it can also mitigate your risk of infringing someone else’s content. If you suspect someone is infringing on your rights online, you can utilise various legal procedures such as ‘cease and desist’ letters or court proceedings to deter them. However, take care in doing so as you can attract liability if you make groundless threats. Save yourself a lot of stress, cost and risk by getting professional legal advice from a qualified intellectual property lawyer before you take any action against an alleged infringer. As I often say, you can’t get the law half right and worse still, if you get it really wrong you are going to be in a world of a hurt.

Need advice?

Safeguarding your intellectual property online (and avoiding liability for infringement) starts with developing a sensible, tailored strategy that considers a broad range of both commercial and legal factors to ensure that your business is fully compliant with, and protected by, the law. Copyright is but one legal basis for protecting your brands and IP. So avoid wasting time and money on trial and error or ad hoc generic processes that may or may not work for your business and get the right advice upfront, from a qualified legal professional who has the right skills and experience.

At Ethikate we are registered lawyers, trade marks attorneys and brand and IP protection specialists.  We can assist you in developing and implementing a tailored brand and IP protection strategy that works for you and your business. Contact us today to find out more.

Events, News Alerts, Not for Profit

Ethikate’s Kate Hamer to speak at the Collins & Co 2015 NFP Conference

Colour headshotEthikate’s Principal Lawyer & Trade Marks Attorney Kate Hamer is thrilled to be speaking at this year’s Collins & Co Not-For-Profit Conference in Melbourne on Friday 29 May.

The event is great value at only $80 for early bird and $100 for regular ticket prices. Attendees will have access to some of the most experienced and knowledgeable advisors in the NFP sector presenting on a range of key issues affecting NFP organisations.

Kate has spent years working with NFP organisations, big and small, helping them to protect their brands and collateral, advising NFP boards and assisting them with governance and compliance matters.

For further information, go to our Events page or download the program and booking form here.

Brand Protection, Business Tips, Trade Marks, Uncategorised

Get in the know – check out our new FAQs!

16883291_sYou want to have as much information as possible before you speak to a professional. Or maybe you feel totally unsure and want to know a little bit more about brand protection and the trade mark registration process.

We get it. Knowledge is power and we are all about empowering our entrepreneurial clients. So to help you out, we’ve put together a list of the most commonly asked questions about brand protection and trade marks.

So, what are you waiting? Get Ethicated with our FAQs here.

Business Tips, On the Blog, Uncategorised

Why small businesses should invest in a board of advisors (and not in ‘hopes and dreams’).

businesspeople

The internet has opened the flood gates to a surge of new ‘experts’ providing quick fixes and unbelievable ‘programs’ and ‘systems’ that promise to turn your rags into riches, sometimes in just a matter of days. Those who know me have often heard me refer to these people and businesses as selling hopes and dreams.

Now, I don’t purport to know all there is about life, love, success and business or even more than a fraction of any of these things. Who knows? Some of these tools might even work…maybe. What I am confident to say is that there is no such thing as a ‘quick fix’ that equals lasting success. Though, it’s not about working hard and following the rules either.

For me, it’s about being smart, strategic and calculated in your approach to each element of your business.

The latest and greatest in money making schemes, sales and marketing tactics and cheap internet ‘experts’ can be very enticing and we’ve all considered these things or even had a taste here and there. Sometimes they are super cheap or just sound like they are relative to the potential earnings and instant results we are promised. Seems like the best investment a business owner could make…right? Right???

I once heard a saying many years ago from a colleague and it still rings true for me today…

You can get cheap and quick but it won’t be good. You can get cheap and good but it won’t be quick. You can get good and quick but it won’t be cheap.”

So, you might be in start up phase and trying to keep things lean, or maybe you’ve been operating for a while now but feel like your chasing your tail – you want to grow but you don’t have the capital to expand…but you need to expand so you can be more profitable. Argh!!! Either way, you feel overwhelmed in your business and probably also quite vulnerable.

What you need is not a quick fix or a promise of cheap, quick and AMAZING. What you need is a trusted advisor. In fact you need a whole board of trusted advisors. Professionals who have expertise, experience, relevant qualifications and, most importantly, ethical obligations to act in the best interests of their clients, you. Equally importantly, these advisors need to be the right fit for your business. That means, they understand who you are, what you are doing and why you are doing it. Plus, you need to feel comfortable talking to these advisors and to respect what they do and what they can offer to your business. If you are really lucky and find the rights ones, these advisors should take a holistic and collaborative approach to supporting you, guiding you, mentoring you.

The Board’s Constitution

So, who should be on your board? Well, it will be slightly different for each business. But to give you an idea here’s an example of a foundational board of 7 advisors that can really make a difference not only when starting out but during the course of your business.

  1. Business Coach – who can work with you on a more intimate level, help drive you to succeed, support you personally and professionally and importantly hold you accountable.
  2. Accountant – one that doesn’t just crunch numbers but provides high level strategic business advisory services. For some, a financial planner may be appropriate to start with.
  3. Lawyer – or lawyers that are suitably experienced and preferably specialise in the area of law they are advising you on.
  4. Marketing Professional – that understands and has expertise and recognised qualified in market research, strategy and implementation.
  5. Consultant/Project Manager – someone who can delve into your business and provide both practical and high level advice on the implementation of various operational procedures and systems.
  6. Web/IT Professional – who can build your online presence and provide ongoing technical expertise and support.
  7. Designer – typically with a graphic design background who gets your unique brand personality and can help you bring it to life.

If you choose your board wisely they will not be cheap and often the results will not be immediate. But what a good board will do is become the backbone of your business. They will help you to develop solid, long term strategies for your business. Then, once you have created the right strategies go knock yourself out hiring people with the tools to help you implement them. But don’t do it the other around or ‘ad hoc’ as I like to say. This is only go to cost you more in the long run, cause you more headaches and leave you scrounging for spare cash to afford the people you should have hired in the first place.

Do it right, pay for it once.

Before I sign off, I know what some of you are probably thinking – how do I find these people? Okay, here’s a few tips to help you get started:

  • Ask around – nothing beats a good referral. Find out from likeminded colleagues and friends who they use or would otherwise recommend. If you don’t know who to ask, then you need to build your network. Go to functions or spend some time away from the home office in a co-working space that resonates with you and where you can meet likeminded people, some of whom may end up on your board, others who may help you with recommendations and referrals.
  • Do a bit of research on potential advisors. Check out their website and other marketing information. Call them up and ask questions. Be very clear about who you are, what your expectations are, and then gauge their reaction. If you don’t feel comfortable with them ask yourself why. If it’s because they don’t align with your values or don’t appear to have the level of expertise you require, keep looking.
  • Once you find a good advisor who you trust, ask them for referrals. I regularly refer my clients to accountants, other lawyers with different skill sets or specialities, business coaches, consultants, marketers, graphic designers, web designers…the list goes on.

About the author

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Kate Hamer is the Principal Lawyer of Ethikate, a boutique Melbourne law firm specialising in brand and IP protection.

You can read her full profile here.

Brand Protection, Business Tips, Intellectual Property, On the Blog

Ethikate’s Top 10 Tips for Starting a New Business

Starting a new business is both exciting and overwhelming. We often like to race ahead and do all the fun bits and forget ignore the boring stuff.

Unfortunately the ‘boring stuff’ is the most important to get right from the start. So, to keep it light but give you some food for thought, here’s my Top 10 Tips to consider when starting up a small business.

 

Ethikate Business Tips

1.Do your planning, research and due diligence before you even think about starting up – start with the business model canvas.

2.Get advice on the right business structure and financial advice – to minimise tax and personal liability.

3.Develop a brand & IP protection strategy during start-up phase…and before you spend $ on your marketing and merchandise.

4.Implement your brand protection & IP strategy – you’ve worked hard to create it so make sure you protect it.

5.Make sure you own your intellectual property or have the freedom to operate – get a Brand & IP Health Check!

6.Implement policies and procedures relevant to your business – online and offline.

7.Get tailored website terms of use and upload them onto your website – don’t copy and paste from another website, it might be wrong!

8.Put in place some standard terms of supply – again, don’t copy and paste, you can’t get the law half right. Do it right, do it once.

9.Invest in the right advice – who are your board of advisors?

10.HAVE FUN!!!!!!!!!!!!!!!!

Are you a start-up or a business owner ready to get serious about your business? Professional legal advice done right is one of the best investments you can make when starting up (I know, I’m biased but I truly believe it and have seen it for myself). Then do it right, do it once with us!

Contact us today for a no obligation initial consultation or learn more by checking out our News, Tips & Blog page.

Brand Protection, Events, Intellectual Property, News Alerts, Trade Marks

News Alert: Ethikate’s Principal Kate Hamer key speaker at 2015 EPIC BUSINESS PLANNING SUMMIT

News Alert: 8 January 2015

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Ethikate’s Principal Kate Hamer a key speaker at the 2015 Epic Business Planning Summit: 4 March 2015.

 

I’ve spoken at several events and even guest lectured at University. However, I don’t think I’ve ever been this excited to speak at an event.

The EPIC BUSINESS PLANNING SUMMIT 2015 has an amazing line-up of female entrepreneurs and successful businesswomen (yes, Lisa Messenger IS one of them!) willing to share their inside knowledge, experience and expertise with fellow ‘sisters’ who are savvy, driven and innovative.

What I really love about being a part of this event is the innovative yet practical focus of the agenda.  Whilst there is undoubtedly an intention to inspire fellow women to unleash their inner entrepreneur, this is in no way an event that sells ‘hopes and dreams’. What the EPIC BUSINESS PLANNING SUMMIT hopes to achieve is to arm business savvy women with some practical tools every start-up and small business should, but often don’t, know about in order to succeed.

So what will I be speaking about at this EPIC BUSINESS PLANNING SUMMIT 2015?

In my experience, there is ‘some’ focus on investing in brand development when starting out. This is great but, if you don’t get it right at the start, you’re wasting your money.

Why? Because a brand is only worth as much as it can be protected…and enforced.

Unfortunately brand protection is often misunderstood or forgotten about, until it’s too late…when your business suddenly lands in hot water.

I’m passionate about educating and empowering business women to get it right at the start, rather than investing a lot more time, energy and money into fixing it later on.

My goal by speaking at this event is to share my experience and technical expertise in the corporate world and as an IP lawyer, trade marks attorney and brand protection specialist to show fellow business women how they can derive the most value from their business by creating a brand that can actually be used, protected and enforced.

I will show attendees the difference between a good brand and a not so good brand and, why it is so important to get it right.

So, what are you waiting for? Get your early bird tickets here.

See you there!

Kate xx

Principal Lawyer, Trade Marks Attorney & Brand Protection Specialist

EPIC BUSINESS PLANNING SUMMIT THE CONNECTION EXCHANGE SQUARE