IP myth-busting

17 February 2009
As an intellectual property (IP) lawyer I am consistently surprised at the variety of IP myths that people in business commonly believe.  I thought it would be useful to compile a list of the most common IP myths people often have and “bust” these myths once and for all!

Myth 1: I need to register my copyright

While this is true in some countries, in Australia and New Zealand copyright arises automatically the moment you put your ideas into a tangible form.  For example, when you draw a new clothing design or create a new company logo, copyright will automatically exist in those artistic works.  You do not need to register it.  However, it is recommended that you date your work with the date of creation, and include the copyright symbol on the work (for example © 2008 John Smith Fashion Ltd).

Myth 2: A company name registration means I can stop other people using that name

In Australia and New Zealand a company name registration does not automatically give you exclusive rights in that name.  The only way you can get broad, nationwide, rights in your company name is either through:

  • a trade mark registration; or
  • widespread and long-standing use of the name.

When you come across someone else using your name for an identical or similar business or fashion product, it is much easier to prevent the other business from using your name if you have your trade mark registered.  The advantage of trade mark registrations is they have nationwide coverage. Even if your business is located in only one town or city and the infringing business is operating at the other end of the country, a trade mark registration gives you the capacity to stop them using the same brand.

If you don’t have a trade mark registration, preventing another trader using your mark is possible, but can be difficult and result in high legal fees.  These actions are also often unsuccessful because the first business is unable to show that their brand’s reputation extends to the territory where the other person is using the same brand.

Myth 3: If I change something by 10% I won’t infringe copyright

This common misconception is particularly relevant to the fashion industry. 
Many large retail chains sell slightly tweaked versions of what is being unveiled on the catwalks of Milan, Paris or New York.  However, the mistake these retail chains make is that they think making a certain percentage of changes will ensure that they do not infringe the original designer’s copyright in the design. This is not the law in either Australia or New Zealand.

Copyright law guards against copying of the “whole” of a copyright work, as well as a “substantial part” of that copyright work.  What forms a “substantial part” depends on the design and differs from design to design. 

Myth 4: A trade mark registration gives me worldwide rights to a name

Trade mark registrations are territorial.  A New Zealand trade mark registration can only be enforced in New Zealand.  Likewise, an Australian trade mark registration only has effect in Australia. 
It is therefore important to register your trade mark in the countries where you plan to use your brand.

An edited version of this article was published in Apparel, February 2009.

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