Learn from the mistakes of others

Some discussion regarding IP, specifically concerning trademarks & copyright.

Intellectual Property is a group of property rights that protect the intellectual effort and creations of artists, inventors and designers. Australia recognises copyright, trademarks, designs and patents among its legally protected intellectual property rights.

IP Australia <http://www.ipaustralia.gov.au/> and commercial law firms can assist businesses develop and implement intellectual property strategies relevant to their needs.

Patents protect inventions such as new or improved products and processes

IP Australia, “What is IP?” Factsheet (PDF) <http://www.ipaustralia.gov.au/pdfs/factsheets/What%20is%20IP.PDF>

Copyright

Copyright protects artistic and literary works, computer programs and engineering drawings. This protection is automatic – you do not need to apply

IP Australia, “What is IP?” Factsheet (PDF) <http://www.ipaustralia.gov.au/pdfs/factsheets/What%20is%20IP.PDF>

To be protected, the work must be the result of the creator’s skill and effort – an original creation, not merely copied from another. Protection is immediate, and Australian copyright works are recognised in many other countries.

There is no need to publish, nor to label the work with a copyright symbol. Copyright automatically protects artistic creations such as writing, pictures, movies and music. The protection is granted by the federal Copyright Act 1968 <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/>, which gives effect to the international Berne Convention.

The usual form of a copyright notice is the copyright symbol ‘©’, or the word Copyright, followed by the author’s name and the year the work was created. (e.g. © Steven Clark 2006) The notice operates as a reminder that the work is protected.

Australian Copyright Council, “Copyright basics”, <http://www.copyright.org.au/information>

Trademarks

Registered trade marks protect a letter, number, word symbol, picture, sound, smell, shape, logo aspect of packaging or combination of these, which you use to distinguish your goods and services from your competitors goods and/or services.

IP Australia, “What is IP?” Factsheet (PDF) <http://www.ipaustralia.gov.au/pdfs/factsheets/What%20is%20IP.PDF>

“A trade mark can be a word, phrase, letter, number, sound, smell, shape, logo, picture, aspect of packaging or a combination of these.” They are used to distinguish goods and services in the market. Registration protects your trademark throughout Australia, and allows you to use, sell, and licence its use with respect to the goods and services for which it has been registered.

Intellectual Property Australia, “What is a Trade Mark?”, <http://www.ipaustralia.gov.au/trademarks/what_index.shtml>

Brands are commonly registered as trademarks. Trademarks provide a range of protections for your brand. In the online environment, trademarks provide the foundation for their owner to claim ownership over domain names in preference to domain squatters, and other cyberpests.

Confidential Information/Trade Secrets

Trade secrets protect know-how and other confidential information.

IP Australia, “What is IP?” Factsheet (PDF) <http://www.ipaustralia.gov.au/pdfs/factsheets/What%20is%20IP.PDF>

Confidential information is a secret or a collection of secrets which have commercial value, but either cannot be protected by a formal class of intellectual property, or would be inconvenient or impractical to register. Some commercial information has value because it is not widely know – such as the formula for Coca-Cola. Secrecy can be an effective way to protect the value of commercial information.

Contracts (known as non-disclosure agreements) are the most common way to ensure commercial secrets are kept. Damages can be sought from any person who breaches a contract – and from anyone who induces or entices a breach. In practical terms, you can sue the person to prevent further breaches and recover punitive damages to discourage further disclosure, and you can sue anyone who tries to profit from the disclosure – usually a competitor – to recover losses, prevent them continuing to profit from the disclosure, and damages for their part in the breach.

Domain Name Squatting

Domain names are considered a quasi-form of intellectual property, the online brand or identity of a business or other organisation.

IP Australia, “Domain Names” Factsheet (PDF) <http://www.ipaustralia.gov.au/pdfs/factsheets/Domain%20Names.PDF>

Domain squatting (or cybersquatting) refers to the practice of an unrelated organisation registering domain names identical or similar to those of a different organisation – and in particular to their trademarks - with the intention of either redirecting traffic to their own websites, or forcing a the target organisation to buy the domain name from them at exorbitant prices, or for other unscrupulous purposes.

Courts around the world, and the World Intellectual Property Organisation (WIPO), have ruled in favour of many trademark owners targeted by this practice.

To succeed, a complainant must establish that:

1. the challenged domain name is the same or very similar to a trade mark or service mark of the complainant, and
2. the challenged registrant has no right or legitimate interest in the domain name, and
3. the domain has been registered and used in bad faith

The Hindu,“Standing up to domain squatting: secure your IP in virtual world”, <http://www.hindu.com/biz/2006/01/09/stories/2006010900761500.htm>

Lack of uniformity of laws regarding internet domain registration leads to irregularities, such as the Canadian situation where a citizen has registered domain names that ‘suggest’ official police websites such as winnepegpolice.ca, with authorities unable to prevent him doing so and using them to redirect traffic to his commercial site. There is no law concerning domain squatting in Canada. In the USA it is a criminal offence.

Sarah Lysecki, “NDP asks cybersquatter to stop using phony URLs to redirect traffic”, IT Business.ca, 5 Jan2006 <http://www.itbusiness.ca/it/client/en/home/News.asp?id=37977>

It does not prevent owners of legitimate trademarks successfully evicting squatters and seeking remedies for other fraudulent behaviour in other countries. In a recent UK case, two Australians were found to have illegally solicited the customers of a legitimate intellectual property owner, attempting to entice them away from Nominet’s .uk Domain Name registration service with misleading registration notices. They were ordered to pay AU$2.3m (£980,000) in damages and penalties by an Australian court.

Ken Young, “Nominet wins data mining case”, Informatics,05 Jan 2006<http://www.infomaticsonline.co.uk/vnunet/news/2148077/nominet-wins-mining-case>

John Leyden, “Domain scam duo fined AU$2.3m”, The Register, 3rd January 2006 < http://www.theregister.co.uk/2006/01/03/domain_scam/ .>

Anti-Domains

An anti-domain is a domain name that is designed to besmirch, or protest, the website or organisation concerned. Some are little more than cyber squatters with an agenda, waiting to be bought out. Others are committed to their principles and can become intractable if approached with lawsuits, etc. Protecting trademarks and customer loyalty can become a hazardous operation.

Staff, Smart Business, “At risk online: your good name”, ZDNet Australia,March 09, 2001 <http://www.zdnet.com.au/news/business/print.htm?TYPE=story&AT=20208148-39023166t-10000004c>

Linking/Deep Linking, Framing, and Inlining

Deep linking takes users to specific pages within a website, rather than the home page. This can defeat the navigation of a remote website by taking users to an interior page rather than the home page of a remote website. The practice maybe intended to confuse the user and discourage them from visiting the remote website.

Framing loads the intended website inside a frame on the original hosts server. This allows content from the host to be displayed alongside or around the content of the external page, essentially trapping the user on the original site. External pages are displayed inside this space, keeping the user on the original site while they also access their intended target.

Inlining is the practice of displaying images that are not intended to be part of the displayed webpage, but are instead served from or by a different page or website.

The purpose of each of these is to increase advertising revenue for the deceptive website. They may also infringe upon intellectual property rights such as patents over linking or redirecting technologies, copyright in webpage layouts, and others. Legal efforts to restrain or prevent these and other deceptive practices have been as ingenious as the practices themselves. The most effective have often been the simplest: contractual agreements and licenses constraining the use or reuse of links or other components of the website/webpage. These can include usually confirmed by the user through a ‘clickwrap’ mechanism, and agreements between website owners permitting or restricting cross-linking and other behaviours. Technologies to prevent or restrict deceptive use or hijacking can also be employed to ensure link integrity, prevent framing, and so forth.

Katia Bodard, Bruno de Vuyst, & Gunther Meyer, “Deep Linking, Framing, Inlining and Extension of Copyrights: Recent Cases in Common Law Jurisdictions”, (March 2004) Volume 11, Number 1 E LAW | Murdoch University Electronic Journal of Law <http://www.murdoch.edu.au/elaw/issues/v11n1/meyer111.html>

Usability by Design Australia, “deep linking”, <http://www.usabilitybydesign.com.au/glossary/deep-linking.htm>

Metatagging

Metatags within html pages are designed to provide descriptions of the content of the page to assist search engines. They can also be used to falsely label a competitors pages so they appear in searches by people seeking you or your products. Where these infringe a trademark, they can be pursued like any other infringement.

Metatagging and other similar deceptive practices seek to lure Internet users away from a legitimate site to another unrelated page. The tagging can also be used to attract unrelated traffic to a website. It is not uncommon for pornography sites to include keywords of popular products in their pages to pick up extra traffic. Some famously used the names of children’s videogame characters such as Pikachu from the Pokémon series – aware that this could lead to minors viewing adult content (a separate, criminal offence in many jurisdictions).

Staff, Smart Business, “Playing tag”, ZDNet Australia, March 09, 2001 <http://www.zdnet.com.au/news/business/print.htm?TYPE=story&AT=20208148-39023166t-10000004c>