I work with many businesses who operate in or who are looking to enter the high-end or luxury goods markets. Counterfeit goods are a growing issue in markets where brand power is a big driver in business, and it continues to be difficult to fight against fakes. While it may not be possible to eliminate counterfeit goods, you can take steps to protect your intellectual property so that you have some form of recourse against fakes.
Firstly, copyright can only protect certain goods. It’s commonly assumed that as copyright protection is automatically granted in Australia, that your designs and products must be protected as well. However, this is most certainly not the case – your product would have to fall under a number of fairly narrow categories to have enforceable copyright protection: literary works, artistic works (such as paintings, drawings, engravings or sculptures), musical works or works of “artistic craftsmanship”.
And no, the stylish lamp that you designed or the designer bag you have created will not likely fall under the sculpture category for the mere fact that it is visually appealing and three dimensional. These types of products are protected under either Patent or Designs law – both of which require formal registration, so don’t make the mistake of relying on automatic copyright to protect you! Often registration is required before you even disclose your product, so make sure you investigate this before you start selling and advertising your goods.
One fairly simple way to protect your brand is to have your brand name or logo registered as a trade mark. This can provide you with recourse when your brand name is used on a counterfeit shop’s website address or social media page, to have these pages taken down.
It is important to note that businesses should trade mark not only their company name, but any brand names, labels or product names that may be marketed. It is far easier to protect a brand prior to launch, than after.
For example, Deckers Outdoor Corporation have a trade mark over their company name in Australia, but not over the wording of their main product, which they have heavily marketed: UGG Boots. Due to extensive use over the years, the term UGG has become a common, descriptive word and as a result can no longer be registered as a trade mark in Australia. Brand names can often be overlooked when a business seeks to protect their intellectual property – so don’t make the mistake of protecting your goods too late!