Infringing on others' IP
You must ensure you do not inadvertently infringe someone else's IP rights. This section describes how to develop a basic infringement avoidance strategy, and how to respond if you are accused of infringement.
How to avoid infringing on others' IP
Infringement can be costly so its best to take proactive steps to avoid having to remedy the infringement of others' IP.There are a number of basic steps you can take to avoid infringing the others' IP rights.
Search and be sure
As part of good business practice you should conduct a search before going public with a new logo or product that might inadvertently infringe on others' IP rights.
Identify your IP
Your IP includes registered rights as well as business critical information, such as customer lists and specialist knowledge. Identifying and reviewing the IP which is owned by your business is the first step.
Maintain your rights
If you own registered IP, keep a track of important dates such as renewal and ensure your details are kept up-to-date on all registers, both in Australia and in other countries.
Get permission for source material
Avoid the use of any material that is sourced from another person without obtaining specific permission. Permission is often referred to as a 'clearance' in relation to IP rights.
You should be vigilant in always asking about the source of any material provided to you and the clearance, if any, of rights in that material.
Retain ownership records
Maintaining documents that record any permissions or steps taken to try to confirm your ownership of the rights or your entitlement to use them may help you to prove that any infringement was innocent, rather than deliberate. This could substantially reduce any liability if you have infringed.
For example, under the Copyright Act 1968, although knowledge of an infringement is not necessary to prove infringement of copyright, knowledge does have a major impact on the damages a court will award.
If a court finds that an infringer did not know and had no reason to believe that there would be an infringement, the court cannot order the infringer to pay damages. Instead, the infringer is ordered to pay to the owner of copyright the value of any profits obtained from the infringement.
Last Updated: 23/11/2013