As you read this post, you're dealing with at least three different sorts of intellectual property — but do you know what they're called? Before we dive into managing intellectual property for clients, let’s take a quick look back.
The existence of intellectual property rights dates as far back as 500 BCE, where citizens of the Greek state Sybaris could be granted a one year patent for “any new refinement in luxury.”
Throughout our continued history, nations herald intellectual property as an integral component of innovation processes and, accordingly, protection has been regarded as an important component of national economic policies.
Now that you’ve had some time to think, can you name the intellectual property that exists on this page? The answers are:
- The logo (copyright & trademark)
- The hosting, servers and SSL certificates (patent)
- The text of this article (copyright)
When you’re managing intellectual property for clients, it's critical to realize that each Google search and each website visit will almost certainly expose visitors to various types of intellectual property. Owners of this intellectual property — whether that’s your clients or their competitors — hold rights, including the right to exclusive ownership.
Understanding these rights can help you protect your clients from copycats, and from inadvertently placing themselves at risk.
Why is managing intellectual property for clients important?
Most client projects involve things like registering domain names and hosting services. This process alone is fraught with potential for others to infringe upon your clients’ intellectual property rights, as explained below.
Let’s start with registering a domain name. Key considerations include:
- Whether the domain name infringes upon an already existing trademark
- Whether the domain name is deceptively similar, or is likely to induce members of the public to believe that domain is associated with another trademark owner
Even if these checks are carried out, there is no guarantee the domain will not infringe on any existing rights. In Lamont v Malishus & Ors (No 4) [2019] FCCA 3206, for example, the registration of malishus.com was found to be infringing on an Australian Trademark “Malishus,” despite the domain functioning in a completely different market.
Beyond a domain name, let’s examine website content. It’s important to ask:
- Whether the copywriter has sourced original content, or whether it has been copied in part from other websites?
- Whether the images are properly licensed, or royalty free?
If you don't do these checks, your usage of these items could be considered copyright infringement. Photojournalist Daniel Morel, for example, sued Getty Images and Agence France-Presse for using his Twitter account to take and sell photographs after the 2010 Haiti earthquake. Morel was awarded $1.2 million in damages by the jury.
Finally, when a logo and other brand assets become public, it’s important to consider:
- Whether they are infringing upon protected colours?
- Whether a logo is deceptively similar to other marks?
Many people are surprised to learn that businesses may register colour marks, which give them exclusive rights to use specific colours and colour combinations in particular classes. Cadbury Chocolate, for example, owned exclusive rights to the colour purple until 2019. (Panatone 2685C).
Another fascinating case features a fried chicken company and Louis Vuitton, one of the world's most recognisable fashion houses. In summary, after being discovered to be deceptively similar to Louis Vuitton, the restaurant Louis Vuiton Dak in South Korea was required to modify its name and packaging. In addition to this, it also received substantial fines.
While there are exceptions to copyright infringement, such as Fair Use, it’s key to avoid using intellectual property without consent. In addition to avoiding significant stress and cost, a second and arguably more important reason to learn about and respect intellectual property rights, is the notion that individuals and organisations should all benefit from private property protection.
The argument for intellectual property protection is the same as why you wouldn’t want strangers driving your car without permission; it’s yours, you worked hard for it, and you are entitled to exclusive possession.
The moral of the story. When in doubt, educate yourself. The internet is full of informative resources that may provide you with the answers you seek. If your question remains unanswered, seek professional advice.
What about protecting my clients’ intellectual property?
We’ve discussed infringing upon the intellectual property rights of others, but what happens when you suspect someone has infringed upon those of a client?
In 2019, my company Internet Removals acted for a large ecommerce business in New York that produced T-shirts. The business identified that their domain name and website (a .com) was being replicated on a .xyz domain name.
In addition to this, the website copied their logo and their entire inventory.
To make matters worse, the .xyz website ranked well organically and was causing confusion for customers of the authentic business, so much so that people were complaining about orders they had not yet received.
It was later discovered that these orders were not placed with our client, but the fraudulent website.
Internet Removals immediately identified various intellectual property infringements and reported them to PayPal, Amazon and the domain registrar. Within one week, we removed the payment processing facilities from the site and had their hosting services terminated.
There are a number of things you can do to protect yourself from intellectual property infringement, such as:
- Registering a broad range of domain names for clients, including TLD and spelling variations.
- Utilising 2FA on the GoDaddy account to prevent unauthorised access or sabotage such as domain cancellation and transfers.
- Subscribing to Google alerts for the client’s business or product name. This may bring to your attention new websites or competitors which may constitute potential infringements.
- Utilise a free service like Copyscape. This service will notify you of any unauthorised use of a client’s website copy.
While intellectual property as a subject for discussion is complex, protecting your own assets does not require a degree or specific skills.
