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Copyright infringement is on the rise: How to protect your IP assets

Thursday, 13 March 2014 | By Vanessa Emilio

Copyright infringement is a difficult but growing area. Unfortunately it seems that there is very little someone needs to change in your work to call it their own.


There are more and more cases making headlines in the news. Take these recent examples:


Website design and content


One of the latest cases in the news is Mrporter.com and Mrshirts.com.au. Mr Shirts is a recent Sydney online start-up selling business shirts. Mr Porter is an established international online shop also selling business shirts.


Mr Shirts’ owner received a letter from the Mr Porter group alleging copyright infringement but claim that they did not ‘deliberately’ copy any elements of the website and that the style similarities are present in many website designs, particularly where off-the-shelf website design packages are involved.


On review, the sites do look remarkably similar. The similarity is not just in the design but also the distinctive signature at the bottom of the website pages. Even the order of the terms and conditions clauses and wording of some of the actual sentences seems identical. But is it enough to claim copyright infringement?


We will have to continue to follow this one as it’s ongoing….


Fashion design


And then there is a copyright infringement allegation in the news against Lara Bingle for copying US swimwear designer Lisa Fernandez in Bingle’s Cotton On collection. Bingle admits she was ‘inspired’ by Fernandez’ collection. Fernandez is claiming not only design copyright infringement but also a right to all neoprene material used in swimwear as she was one of the first to use it. But is being the first to use a material enough to protect the US designer?


Fernandez’ claim is highly dependent on whether she has registered her designs in Australia. The Copyright Act 1968 protects 2D images and the Designs Act 2003 protects visual appearance of designs that are new, distinctive and registered. However, neither Act would categorically protect the use of the particular material. As for the designs, it’s very difficult to argue copyright infringement unless you can show, for example, a design feature that was ‘distinctive’ and special to your particular design piece.


So what can you do to protect your copyright designs?


1. Register your IP


Trademark your name and logo to prevent other businesses from registering and using your name. Unfortunately when it comes to trademark registration, it’s the first trademark registration that is able to use the business name for a similar business, and not dependent on whether you have been running the business for years or registered with ASIC.

Patent your idea if it is unique. If it’s an App, software idea or process, design or other unique work, you can register the design for patent protection against others copying it or something similar. However, if you have already disclosed your design, be aware it may no longer be registrable.


2. Keep all your notes and design ideas


No matter what you have invented or designed and even if you have not registered it, evidence of your idea, how you evolved and developed the idea, any drawings or sketches you made along the way and any other notes, etc, go a long way toward evidencing your process for development of the work. If you are designing a website, these notes and drawings will be very strong elements to show your idea is unique even if it proves to be similar to another site design.


3. Contractor agreement confidentiality and warranty


If you are using a website developer, designer, or any other type of contractor to assist you, ensure you have an agreement in place that includes a strong confidentiality clause. Your agreement should also include a warranty that any design or content they develop is either unique or not infringing any third party copyright. Don’t rely on their word for it!