6 Questions to Ask a Lawyer About Trade Marks and Copyright
Angus
Are you at a point in your business where you need to speak to a lawyer about a trade mark and copyright matter? For example, you might like to talk to a lawyer because you have created a unique product or service, and would like to protect your brand. This article will explain six key questions you should consider asking your lawyer when looking to establish a trade mark or copyright interest.
1. What is a Trade Mark?
A trade mark can be a logo, tagline or other brand identifier. It is an essential part of your business. A trade mark lawyer will be able to assist you by deciding whether:
- you have a trade mark; and
- the trade mark you are using can be protected.
A trade mark lawyer will walk you through the process of deciding if you have a trade mark and, if so, how to register and manage your trade mark.
2. How Do I Register a Trade Mark Online in Australia?
After deciding whether you have a trade mark, the next step is to decide whether or not to register your trade mark. A trade mark lawyer will take many steps before lodging a trade mark application. These include:
- searching the trade mark database for similar trade marks;
- deciding whether to lodge a TM Headstart application or a standard application; and
- using the IP Australia picklist to decide on the best class of trade mark.
3. How Do I Decide on a Class for My Trade Mark?
There are 45 classes your trade mark can fall within. Making the right decision about the class for your trade mark has a number of benefits, including:
- properly protecting your trade mark; and
- saving you money (by not registering your trade mark in unnecessary classes).
Experienced trade mark lawyers will know what class to file your application in and help you to navigate the process.
4. How Can I Protect My Copyright?
An experienced copyright lawyer will be able to advise you on the best way to protect your copyright. In Australia, copyright is granted automatically under the law. This means there are no fees and no formal registration requirements.
In most cases, copyright owners can rely on a number of presumptions in Australian copyright law to maintain their use and ownership of their copyright. In addition to the presumptions that you own your copyright, technological steps and contractual terms are often used to further protect your copyrighted material. A lawyer can help explain this.
5. Who Owns the Copyright on My Work?
Although this may seem counterintuitive, the copyright creator may not always be the owner of the copyright. For example, if two parties have an agreement setting out which party owns the copyright, the agreement will dictate who owns the copyright, not the relevant copyright law.
There may also be more than one owner of copyright. It is important to recognise that ownership of the physical item does not always indicate ownership of the copyright. Additionally, there are moral rights that copyright creators maintain, even if they are not the copyright owner.
For example, even if you buy a painting, the artist can still own the copyright in the painting. This prevents you from doing certain things with the painting.
6. What Can I Do If Someone Is Infringing My Copyright?
If someone is infringing your copyright, you should contact a lawyer as soon as possible. Copyright is infringed when another party substantially uses a part of your copyright material without your permission.
A lawyer familiar with copyright law will be able to advise you on ways to protect your copyright. You could issue a cease and desist letter or notify industry organisations. In the worst case scenario, you may need to take your copyright claim to court.
Key Takeaways
Before deciding to meet with a lawyer about your trade mark or copyright content, you should consider whether you have a copyright claim or a product or logo to trade mark. You may also want to think about why you need to talk to a lawyer. Is it to register your trade mark, or stop other people from using your copyright material or trade mark? You may also want to set up methods to control the use of your trade mark or copyright. Knowing what you want to ask will help you get the right information. If you have any questions for a lawyer about a trade mark or copyright interest, our experienced intellectual property lawyers can help. Call us on 1300 657 423 or fill out the form on this page.
Frequently Asked Questions
You can make sure that any sale agreement regarding the supply of copyright material only allows use of your copyright material in certain circumstances and does not pass on ownership rights in the copyright itself.
There are three key organisations that help manage copyright. They are APRA (for copyright in music and public performances), Copyright Agency (for writers) and Viscopy (for the reproduction of artworks).
You can register for a trade mark online through IP Australia.