Have you ever had an idea which you thought was totally original? Have you gone on and done a bit of research, only to find out that it has been done before?
Maybe you have started humming what you thought was an original melody, only to realise it was actually a song you heard on the radio that morning. That might be what happened to the Aussie band Men at Work when they came up with the 1981 hit, “Land Down Under”. Unfortunately this kind of thing catches up with people; in 2009 they were successfully sued by the owner of the rights to the song “Kookaburra sits in the old gum tree” for plagiarising that melody in their flute riff (have a listen if you don’t believe me). More recently in the United States, Sony settled a dispute with Marvin Gaye’s family over a claim that Robin Thicke and Pharrell Williams plagiarised “Got To Give It Up” in their 2013 hit “Blurred Lines”.
While those examples may not be so innocent, it is important to recognise that we don’t live in a vacuum, and it’s impossible to keep track of all the influences that we are exposed to in our day to day lives. When people have common influences, it is likely that they might produce similar ideas. But whether or not you intend to copy an idea may be irrelevant when it comes to determining if you are infringing someone else’s intellectual property rights.
Of course plagiarism of intellectual property isn’t limited to pop songs; the same thing could quite easily happen with your business ideas. If you want to reduce your risk of costly litigation in the future, you need to be proactive and check that your ideas are not infringing any existing intellectual property rights. There are a number of steps that you can take, which will not only minimise your exposure to legal risks, but also help you to ensure that you are developing genuinely original ideas and keeping it fresh.
When hiring designers to come up with ideas, you need to make sure that any intellectual property in the work they produce is vested in your business. This can be achieved by including terms to that effect in your contractual agreements. You should also require them to provide warranties that their work does not infringe any intellectual property rights, and indemnify you for any breaches of those provisions.
If your ideas are coming from your employees, you should be using similar terms in your employment contracts.
Trade Marks, Business Names, Company Names, and Patent Searches
Before you go to the effort and expense of applying for a trade mark, business name, company name, or patent, you can utilise the searches available through IP Australia and ASIC to determine whether they are available, and see whether there are any similar ideas out there.
Even if a trade mark hasn’t been registered, you should conduct further enquiries to determine whether it is being used in the market. Rights may still exist at common law if a mark has been used to such an extent that it has developed a substantial reputation and goodwill.
This searching process can be complicated and if not done properly you could expose yourself to liability under the Trade Marks Act 1995, Australian Consumer Law, and at common law. To minimise those risks, we recommend utilising the professional skills and expertise available at Sajen legal.
Are we there yet?
Unfortunately, the fact that you have conducted these searches and determined that your idea is an original one doesn’t mean that you can rest on your laurels.
As you can see, it’s important to get your ideas out there and make your mark – before someone else beats you to the punch.
In our upcoming posts we will look at the steps you can take to establish your own rights and ensure that nobody else uses your ideas. But if you have an idea that you are holding onto right now, don’t sit on it – sajenise it.