An element of a creative entrepreneur’s marketing plan usually involves circulating content on popular social media platforms. But did you know sharing your creations on a public forum like Facebook or Instagram before securing intellectual property (IP) protection may void your chances of obtaining IP rights? This leaves you at risk to copycats and competitors.
As you draw up your business and IP strategy, consider the type of IP protection you need:
Registered design rights
Design rights allow you to legally enforce ownership of your creation. This is necessary if you want to commercially manufacture and market your design within Australia and overseas. Note that in order for your application to be successful, your design needs to be both new and distinctive. Communicating or publishing details about your design in the public domain before completing your application can compromise the success of registering and certifying your design.
Say you’re a fashion designer and you’ve created a garment with a pattern design that is the first of its kind. To promote your creation you may want to share it on Instagram. However if you upload an image of your garment before you submit your application, you will have disclosed your design and therefore it will no longer be considered new during the design examination process.
Trade marks are different to design rights in that if you’ve already started trading with your brand or logo you can still submit your trade mark application. However, in Australia, trade mark applications are examined according to the similarities between its text and/or image(s) compared to what is already in circulation. If another business is already trading with your desired trade mark, then our trade mark examiners will take this into consideration and it may impact whether your trade mark is granted or not. We suggest you seek trade mark protection before publicising your brand online.
Another consideration for brands on social media is the use of hashtags which have become a recognised symbol on social media platforms and therefore have a meaning to the general public. In most cases, the hashtag is simply a social media tool and it’s what follows the # symbol that would set your business apart as a potentially registrable brand.
As a rule of thumb, if you’re interested in obtaining patent protection for your invention you should not share any details of it with anyone until you’ve filed your patent application. If you share your invention on social media before filing, you will have made it publicly available information and therefore it will no longer be considered ‘new’. Bear in mind that an invention must fulfil three requirements in order to be granted patent protection: it must be new, be able to be made or used in an industry and involve either an inventive step (standard patent) or innovative step (innovation patent).
Imagine you’re a product designer and you’ve invented a chair that has new functionalities. You might take a short video on your phone to document how it works. If you then upload the video to YouTube before completing your application, this would negatively impact its outcome as it would be considered prior art. You should consider whether this early promotion would attract copycats and competitors.
Creative works are covered by copyright automatically and, in Australia, in most cases this protection lasts for 70 years after the death of the creator. The categories of protected material include textual material, computer programs, compilations, artistic works, dramatic works, musical works, cinematograph films, sound recordings, broadcasts and published editions. Please see the Copyright Council of Australia for more information.
In order to engage with social media platforms such as Facebook, the user may have to agree to let the platform own the copyright to all content created by the user. Make sure to be aware of the terms and conditions when you sign up.
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