A business’ intellectual property, be it trade marks, copyright or patents, is at least a critical asset or more likely a foundation of the business and often very valuable. The definition and protection of those intellectual property assets is a fundamental strategic issue for the survival and growth of that business especially in today’s competitive and uncertain economic environment.
At Lord Commercial Lawyers we understand the issues and have experience in protecting intellectual property and enforcing your rights. We can help you to manage your intellectual property efficiently and cost effectively to put your business on a solid foundation. We recognise that sometimes it is better to secure the future use of a business’ intellectual property rather than litigating over the past infringement by a third party. Notwithstanding that recognition of commercial reality we have extensive litigation experience with Andrew Lord.
Our experience in intellectual property covers the entire field of registered and common law rights. We have advised clients on the registration of trade marks, designs, plant breeder’s rights and patents and filed applications for the registration of all of those rights except patents.
Copyright in Australia vests in original works upon the creation of those works and their reduction to a material form. This means that when an author writes a novel, film script or a news article or a photographer captures an image or records a scene on a video then copyright comes into existence at that time. The default position under the law is that the author is the owner of the copyright unless there is some contract (eg employment contract) that provides otherwise.
For some works copyright may not subsist until a later time. For example there is no subsisting copyright in a choreographic work comprised in a dance move until such time as the choreography is “reduced to a material form” such as reduced to writing or recorded on video.
The copyright owner and author each have rights in the copyright works that include the exclusive right to reproduce the work and the right of attribution.
Lord Commercial Lawyers has significant experience in protecting and enforcing the rights of copyright owners and authors. Andrew Lord has represented Microsoft, Warner Bros, GlaxoSmithKline, F Hoffman La Roche, Bose, Calvin Klein and numerous other multinational copyright owners in enforcing their copyright against infringers and counterfeiters in Asia.
Authors and creators of works should consult a lawyer at the time of creation of works to ensure they have and maintain all the necessary documentation to evidence their ownership or authorship of the works. Lord Commercial Lawyers can advise on the relevant evidence and ensure the relative rights of individual contributors are identified and protected in collaborative works.
In addition to the rights of a registered trade mark owner a business trading under a name, even if that name is not a registered trade mark, has common law rights to protect the goodwill in their trading name or brand. This is described as a right of a trader to prevent unfair competition or a passing off action.
Under the common law a trader who has a reputation in a brand or name is entitled to prevent other traders from using that brand to pass off their business, goods or services as those of or affiliated with the trader who has the reputation. This right is similar to the rights of a registered trade mark however it requires that the brand owner prove it has a reputation in the brand. This evidentiary burden, which is not necessary for a registered trade mark, requires the provision of significant evidence over a significant period of time. The gathering and presentation of such evidence can be quite expensive.
In most unfair competition actions it is common to also include a misrepresentation or misleading and deceptive conduct claim under the Competition and Consumer Act 2010. This helps to back up the unfair competition action where the evidence may not be sufficient to establish the requisite reputation.
A successful unfair competition claim may result in the court restraining the defendant from using the name or brand and ordering corrective advertising and the payment of damages.