IP ACTIONS: Where to Start

Just like the motorist asking for directions from the Irish farmer, in copyright litigation the answer is often “I would not start from here, if I were you”.
 
Copyright court actions are to be avoided if possible, as nothing seems to be straightforward.  You must prove that you own the copyright, which can be a lot harder than it sounds.   It involves tracing your ownership back since the work was created.  You may need to request assignments or licences from contributors, third parties, and maybe employees.  
 
Although this may appear to give some comfort to anyone being sued for copyright infringement, it also means that copyright lawyers can use up a lot of billable hours in producing detailed evidence for which defendants usually pay, if they lose.  Defendants can instruct their own specialist copyright lawyers who may feel compelled to raise academic, technical defences and the costs escalate.
 
This is why you must try to rely on trademark law to protect your IP, which means that you must do three things:

1.    have a registered trademark; and

2.    make sure it is effective e.g. it is registered in the right class; and

3.    design your product so that if it is copied, the infringer also copies the trademark.
 
For instance, sell your product with a label, a box or other packaging which bears your trademark.  The infringer may copy the trademark too.  Sometimes inadvertently, e.g. photocopying a training manual and sometimes deliberately, e.g. the infringer may need to duplicate the packaging to convince a buyer it is genuine.
 
Therefore, use a trademark to help protect your IP, if possible.   
 
Of course, without money you cannot launch a court action and then it is even more important to create the impression that you will fight to the death to protect your copyright.  If you can’t fight, get a big hat.

Extract from "Easy IP: How to use the Law to Protect you Money-Making Ideas" by Paul Brennan



   

 

©  Paul Brennan 2010. All rights reserved.

More on Easy IP:

PROTECTING YOUR NAME, IDEAS, PRODUCTS, AND BRANDS

EASY IP: HOW TO USE THE LAW TO PROTECT YOUR MONEY-MAKING IDEAS


Sponsored by Brennans Solicitors

 
 

Paul Brennan, lawyer

sponsored by Brennans solicitors - a Queensland, Australia law firm - Individual Liability limited by a scheme approved under professional standards legislation.
ABN 60 583 357 067
email: info@brennanlaw.com.au

Please see the copyright notice and legal disclaimer