Episode 73

Protecting your business through trademarking

with Riz McDonald

Is your intellectual property protected?

In today’s episode, Riz McDonald shares the differences between trademarking, copyrighting and registering a trademark and how to keep your IP safe.

 

In this Episode:

  • 03.50: Why protect your intellectual property and create a trademark
  • 06.47: Trademarking your own name, is it needed?
  • 08.54: Registering trademarks globally
  • 18.05: What is copyright and when do you need it
  • 21.52: What happens if someone uses something you have trademarked or copyrighted?
  • 30.00: How to work through a claim against you

 

Links:

 

Transcription

Is your intellectual property protected? Maybe you don’t know the difference between trademarking copyrighting, and registering a trademark. Today’s guest on the podcast, Riz, the founder of Foundd Legal, shares everything that you need to know about trademarking and keeping your intellectual property safe. Let’s get started.

You’re listening to The Clare Wood Podcast, where we talk all things, business, finance, marketing, and mindset for entrepreneurs, sharing practical tips and actionable advice to help you take your business to the next level. Introducing your host, me. I’m Clare Wood. I’m a numbers geek, a travel lover, and a reality TV addict. And I’m here to empower you to grow an extraordinary business and an amazing life because I believe you don’t have to choose between the two. Now let’s dive right into today’s episode.

Clare:

A big warm welcome to the podcast, Riz. So Riz, can you share a little bit about your business and how you help business owners?

Riz:

Absolutely. So my name is Riz McDonald and I run Foundd Legal. I just celebrated my one year anniversary, actually. I started Foundd for a number of reasons. One is very selfish reasons. I wanted some freedom and flexibility or more choice than anything. I also started Foundd because there was a gap in the market for affordable legal services that without the legalese, basically. And I wanted to make sure that the services I provided were catering to my client’s needs, those creatives, those entrepreneurs, not what I think as a lawyer that they need, if that makes sense. And I wanted to make sure they had, whether it was templates or whether it was the legal services, that they could understand those documents and they can understand what I was seeing and be comfortable and confident. I wanted to make sure I gave them the, I don’t know if this is the best analogy, but the fishing rod, not the fish. I wanted them to be confident in what they received and that’s how Foundd basically came about.

 

And so now I provide combination of services. I provide obviously, legal services and legal advice and I help people with lots of different things from startup to scaling. I also, because of my business experience, I used to run an e-commerce business and I’m basically a serial entrepreneur, so I use my business experience and my legal experience to look at their businesses holistically and give them advice that’s not just legal, but practical as well. And from the back of that, I’ve started developing courses that relate to those aspects. And I love the fact that I’m able to do that, offer those legal combined with the business because it’s not just one thing necessarily, especially for those who are starting out.

Clare:

Yeah. Amazing. So you love the law. You’re here to support other people to make sure that they’ve got their legal ducks in a row. And I love that you sort of said that you liked to get rid of the legalese because a lot of business owners get a little bit scared when it comes to looking at their legals so I love that. Today I wanted to bring you on because there’s something that I am really keen to share with the listeners, which is all about protecting intellectual property. Forgive me for just diving straight into the good stuff, but let’s just get right into it. First and foremost, what exactly is the process? Why would somebody want to protect their intellectual property and, or create a trademark?

 

Why protect your intellectual property and create a trademark

Riz:

Oh, absolutely. And that’s a great question. And, oh my goodness, I can’t emphasize how important that is. One of the things I’ve noticed and experienced with my clients over the last 12 plus months and beyond that is that small businesses thinks more when they should think big. They are no different to the big businesses. They’re just on a smaller scale. And one of the things they always fail to do, in my experience, is not consider the valuable asset, the goldmine they’re sitting on, which is their intellectual property. So a truth bomb here, your brand name, business name is not your exclusive property if you haven’t registered as a trademark. Okay? So if you don’t register your name, business name as a trademark, you do not have exclusive rights to that. Somebody else can come in and gazump you and register the trademark potentially. So it’s important to understand that. In terms of intellectual property covers a broader range and that includes copyright.

 

So when you create courses, when you create eBooks, and when you create any kind of digital product, that’s your intellectual property. Whether you’re a photographer and you take a picture, that’s your intellectual property. So you need to protect it. You need to protect it with the right terms and conditions. Watermarks, the little C in a circle, copyright on your website and everywhere else if you can. And with your business name, your brand name, you should seriously think about investing in registering it as a trademark, because like I said, without that you do not have the exclusive rights.

 

Look, if you have a business name and you’ve been trading for three or four years and you haven’t registered it as a trademark and somebody else comes along and decides to use that name, you’ve got a bit of a problem. You would have to prove and go collect a ton of evidence to support you, to show that you own that name and they need to stop. But if you have a registered trademark, you just say, “Hey, this is my registered trademark.” And enforce your rights that way. It’s a lot easier, a lot less expensive. So it’s super important. It’s actually, a lot of people think it’s better to wait to register because money is an issue, but the reality is it becomes a problem, and that problem becomes more expensive than that initial cost of registering.

Clare:

Okay. Oh, my gosh. So much going on here. So let’s backtrack a little bit. So firstly, let’s start at the business name. A lot of small business owners, myself included, have our name as our business name. Do we still need to trademark if we’re trading under our own name?

 

Trademarking your own name, is it needed?

Riz:

You can if you want to. And it’s certainly, if you want to go global, and if you want to create products that sit under that name, it’s certainly… Look at Kylie, Kylie Minogue. There was that big with stouche with, was it Kylie Jenner, over her name and she rightfully stopped Kylie Jenner from trying to register a trademark. So I think it’s something you should seriously consider, especially if you have big plans for your business and how that’s going to look and a scale for you. And especially if you want to monetize it in other ways as well, it’s worth considering in my opinion.

Clare:

Okay. So a trademark is the little TM that we see, right?

Riz:

So the TM indicates that it’s a trademark, but when you register it through IP Australia, it’s a little R in a circle that you can use after your trademark. So you know how you see it on Coca Cola or Nike, et cetera? You see the little circle with an R inside, that means it’s a registered trademark, so everyone knows it’s yours. It’s exclusive to you.

Clare:

Okay. You’re going to have to forgive all the dumb questions.

Riz:

No, no, please.

Clare:

If I’m thinking this I’m sure other people are too.

Riz:

Yeah, yeah. So when a trademark is unregistered, you use the little TM to show it is still a trademark, but it’s just that in order for you to use the R in a circle, it has to be registered as a trademark through IP Australia. That’s the only way to do it.

Clare:

Okay, cool. So ideally what you want to do is you want to have it registered and you want to have the little R in a circle. Is that right?

Riz:

Yes. Correct.

Clare:

Okay, cool.

Riz:

And you can only have that if it’s registered because it indicates it’s registered trademark.

Clare:

Okay, cool. Now I know we’ve got listeners outside of Australia. So if they’re listening, going, “Is this the same?” For example, you mentioned Coke, did they need to register in Australia and then other countries as well?

Riz:

Yes. So if you wish to be a global brand, obviously it becomes expensive. So if you have plans to be global, then it’s worth registering in each of those locations. If you’re just starting out and you have no plans to go global, then you should at a minimum register in your own country and have it protected nationally once you register. So for example, if you register a trademark in Australia, you’re protected nationally. If you wish to be a global brand and you want to, and potentially the US is a big market for you, then you should definitely be looking at registering your trademark in America as well. And the best way to do that is utilize the services of a trademark attorney familiar with that jurisdiction. Yes, it can become expensive, but if you have global domination plans, it’s worth it, definitely. And you can enforce your rights.

Clare:

So how do you know which countries to register in? There’s so many different countries around the world. As a lawyer, what would you recommend if someone starts going, “Yes, I do want to dominate the world.”? Do they need to go and get a local lawyer in all the different countries, even non-English speaking countries? What are your thoughts there?

 

Registering trademarks globally

Riz:

So basically I always talk to my clients to say, “Hey, think about your business strategy. What are your plans? Do you plan to be global? How soon? What does that all look like before taking the next step?” So it’s kind of almost a personal slash business decision first and foremost, around what the intent and the plans and the strategies. There’s no point spending tens of thousands of dollars, and then you don’t go anywhere and you just stay in Australia. That’s such a waste of money, but equally, if you have solid plans and if you can obviously afford to as well, money does become a factor, you should be seeking the expertise of a local based lawyer and preferably a trademark attorney or somebody who has that trademark experience to help guide you through the requirements.

I can’t speak for other jurisdictions, but I know that the US for example, is kind of similar in some of the requirements and the classifications that you need to consider. And that’s kind of getting into the technicalities, and I don’t want to get into that too much, but certainly it’s best to utilize the services as somebody who has that experience. And look, you can go through an Australian based lawyer to help be the middleman, so to speak, or the middle person, to help guide you as well and hold your hand, if you don’t want to have that direct relationship necessarily. And it’s a worthwhile investment if those are your plans.

Clare:

So we’ve spoken about business names. Let’s take this a step further because a lot of people, yourself included, have a podcast, have an online course, an online program, maybe they’ve got a tagline as well. I know a lot of businesses that have got a really cool tagline. Do you need to trademark all of those things as well?

Riz:

So if you have plans to use that tagline and use it with everything that you do then yeah, for sure. Look at Nike’s slogan, “Let’s do it.” It’s a registered trademark, so you can’t. You can actually tag it or you can actually register and trademark ascent. Cadbury have registered their color, that purple color that’s synonymous with Cadbury’s chocolate. It’s a registered trademark. So there’s quite a few things you can, surprisingly, you can trademark.

 

If you’ve got a tagline that resonates with and is part of your business strategy, and you will be using it and you don’t want anyone else to use it, then yes, you should register it. And you need to use it, or you lose it, if that makes sense. You need to use that slogan, that tagline, with everything that you do in the… If it was a course, you use it with that. If you’re a business and running everything online, use it where you need to use it so there is use from it as well. But yes, you can. Short answer, you can register a trademark in your tagline.

Clare:

When you’re talking about you can’t register something that you’re not using, would an example of that be… So, okay. So my name Clare Wood is spelled C L A R E. If I was trying to trademark C L A I R E, which obviously I don’t use, would that then mean that because you’re not using it, you’re not allowed to register it?

Riz:

It’s not so much that. So basically when you register a trademark, you have to have the you are either using it or you have the intent to use it. So if you don’t use it well, number one, you’re wasting your money, frankly. Registering the trademark you’re not going to use, what’s the point? Number two, somebody else can come along and think, “Well, I really like that trademark.” and do a little bit of research and find out you’re not really using it. And they can put in an application to IP Australia to say, “Hey, they’re not using it. I want it.” And then you’ve got to provide support to show. “Well, actually, no, I have been using it.” Or, “Oh, actually, no, I haven’t.” And it can be taken off you. So that’s why you got to use it or you lose it. And it’s certainly a waste of money if you’re going to register something you’re never going to use.

Clare:

Oh, well, the example that I was thinking of is what if someone came and registered something just so that a competitor… What if Coca-Cola said I’m going to register the name Pepsi so that Pepsi can’t use it, but obviously you’re saying that you can’t do that if you have no intent of using the name itself. So that’s kind of why they’ve created the legislation like that.

Riz:

When you register trademark, there’s a rationale that you’re about to start a business, or you’ve already have a business in existence where you’ve been using that name and you register to protect that so nobody else uses it and you can keep using it, so to speak, or you want to start using it. But when you register something and you don’t use it at all, and you’re basically hogging that name and you don’t want anyone else to use it, and somebody can quite easily come along and if they can support their case that you haven’t used and you can’t support your case that you have, if you see what I mean, then it can be taken off you. Absolutely. The intent of the whole registration of a trademark is A, to stop somebody else from using it because you have plans to use it, if you see what I mean. So yeah. So there are mechanisms in place to stop that from happening.

Clare:

So if someone is thinking, “Oh, my goodness, I’ve got so much stuff.” I don’t know. What would your advice be as to how to determine what they should look to trademark and what maybe at this stage isn’t necessary? How would they go about working out that process?

Riz:

So when you’re on a really tight budget and you’ve come up with a beautiful name and you’ve got all your socials, you’ve got all the domain name and you’ve done the research for that, and you’ve even registered the business name as well, and you’ve done all those good things, and you’ve also come up with a beautiful logo for that name. If you’re on a very tight budget, I would suggest that you start with registering the word, the name first, rather than the beautifully designed logo, if you’re on a really tight budget. And if you’ve got taglines as well, that are super important to you, then consider trying to find a way to register that too, if you can. But certainly with a name, I would go for the name, the word, over the logo. A logo can change over time as well.

 

You might start off with a particular logo today and in a few years time, you might change your logo. Look at Coca Cola, over the years, they’ve changed their logo, but they’ve got deep pockets. They can keep registering new trademarks every time they change their logo. Not everyone has deep pockets. So certainly if you’re on a really tight budget, I would highly recommend. And look, most of the time, most people are looking to register their business name really, rather than anything else, most of the time. And so that should be your key focus is registering that and protecting that to make sure you then have the exclusive rights to that. And then once you’re in a position and you can afford it, and you’ve decided on a logo and you’re a hundred percent, this is the logo for the next however many years, then you can register that as well to protect yourself.

Clare:

So we’ve spoken about trademarking, about registering, what’s with the little C, and does that mean do you need to apply to have something copyrighted or how does that process come about if you’re wanting to protect content that you’ve created?

 

What is copyright and when do you need it

Riz:

Okay. So with copyright, it basically comes into existence the moment you create it. So for example, the click of a camera and the picture is created. That’s your copyright right there. If you have an idea about poetry or a book, the idea is not protected because it’s still in your head. But the moment you put pen to paper, it’s protected. Look at J.K. Rowling, if she had not written those books and they were just an idea in her head and somebody else decided to write about a book on a little boy wizard, then tough on J.K. She should’ve written it down, but she has. And she now has the copyright in all those amazing books, which I loved when they came out. So copyright exists in Australia, exists the moment you create the work. It’s got to be the expression, not the idea. And so the little C and putting the year and your business name after it, it’s more telling the world, “Hey, this is my copyright.”

 

And other ways you can protect your copyright is through contractual terms, your website T’s, and C’s. Having the little C in a circle on any digital documents, in the footer of all your digital documents. When you create something, keep any drafts, et cetera, especially a book, for example. Just keep because they all have their dates, even electronically, when it was first created. So website terms and conditions. If you have content on your website, that’s your copyright you want to protect and let the world know what they can and cannot do with your content on your website. Contractually, if you have contractual arrangements with another party, and you’re either creating content that you wish to retain copyright in and license it to them, then again, in your contract, you would set out exactly who owns the copyright and what the other person can and cannot do with that copyright as well. So they’re the best ways to protect.

Clare:

So copyright comes into existence automatically here in Australia and whether or not you put the C on it, it’s still protected by copyright, but sometimes the C’s just a way of saying, “Hey, guys. This is mine. Don’t take it.”

Riz:

Yes, yes. So if it’s your original content and it’s not anyone else’s, it’s your original content, then it’s automatically protected. There are certain scenarios where you may not own the copyright and that there are, for example, if you’re an employee you might not own the copyright. If you’re a photographer doing what I call domestic or retail photography, like weddings, engagement parties, the personal type of photography, then you need to make sure there’s language in your contract that assigns the IP to you. And then you tell your customer what they can and cannot do with those images. So there are certain exceptions where you might not own the copyright. So you know when you have companies who have employees creating code and all sorts of things as part of their business? Well, the company owns all of that, not the individual.

Clare:

Okay, cool. So much to learn in this space. And I know it’s probably second nature to you, but I’m asking all these questions because I imagine that these are things that a lot of business owners really are curious to learn about. So once we’ve got these two different, we’ve got trademarking, we’ve got registering the trademark, we’ve got copyright. What happens if somebody was to take something that either you have registered as a trademark, or if someone has stolen, some of your work, is the first part of the question. The second part of the question is I’ve heard this thing that if 10% is changed or something. I heard this, if 10% is changed, then it’s fine, so long as you change 10% of it. So can you explain a little bit more about this?

 

What happens if someone uses something you have trademarked or copyrighted?

Riz:

Yes. Sure. Look, I’ll try to break it down, but yes. If somebody else is using your trademark, first establish that it is being infringed by being used on the same or similar goods or services for which your trademark has been registered, and then you can rely upon that to issue a cease and desist to stop the infringement from continuing. In regards to copyright, yes. Again, some similarities in terms of issuing a cease and desist, but before you do all of that, gather all the evidence to support your argument because sometimes that evidence can disappear. So make sure you gather all the evidence to prove that your original work has been infringed. Now in regards to the 10% rule, look, there is common misconception at that by only copying 10% of somebody’s work is not breaching their copyright. That is not true. You can breach somebody’s copyright, even if it’s 10%, because the rule is not the quantity, but the quality, if that makes sense.

 

So even if you use 10% of somebody else’s work, it could still be a distinctive part of that work. And if that’s the case, then you have infringed copyright. Look, in my view, it’s always best to seek permission and consent, license the content if you want to use it, approach the owner for permission, for a license, whatever it takes for you to be able to use it if it’s important for you to use. Otherwise, you need to go back to square one because it’s really important that you don’t make the assumption. And make sure if you have people working for you, whether they’re contractors or employees, that they also understand that either reproducing even a small part of somebody else’s work could constitute copyright infringement, even if there are substantial differences. And so it’s important to understand that, to avoid potential infringement. So yes, the quantity is not important, it’s the quality of what is being taken. I hope that helps.

Riz:

The other thing to be mindful of is if you have been accused and it’s proven that you’ve infringed, they can take out injunctions to stop you from continuing with that copying. There could be damages. There could be an accounting of profits and, or delivering up of any infringing content that’s been created. So just be careful of that. I hope that answers the question around the 10%.

Clare:

Yeah. A hundred percent. I mean, I’ve heard that’s a commonly held belief. Quite a few people have said that, and I’m like, “I don’t think it quite works like that.” So I’m glad that you’ve confirmed that.

 

And do you know what? I really believe in business in karma as well. And I think if there’s any part of you that thinks, “Oh, maybe I’m taking this or the concepts are similar.” I would listen to your gut on that. I make a real effort to try. And always, if I’m talking about a similar topic to someone else, to try and take a really different lens, a really different angle, create a custom framework that is different because if you wouldn’t want it done to you, you shouldn’t do it to anybody else.

Clare:

Asides from the thoughts and the feel-good factor around it, in terms of when you’ve spoken about taking it further, if someone was to take someone else’s intellectual property and make money from it, the other party could be liable to pay them significant compensation. Is that right?

Riz:

Correct. So you can potentially pursue the matter with a view to basically making them accountable for the profits they’ve gained from a breach of your copyright. Obviously, there’s a process involved and you would need to engage a lawyer to assist you and certainly it’s recommended, but yes, the infringer is potentially liable for any profits they’ve made from that infringement. They’ve benefited from your work, and if that’s proven to be the case, then yes, they would. That’s just one of the options that can be pursued. Absolutely.

 

And it’s not worth it. I think it’s better to come up with your own original content obviously. And I highly recommend it and it’s a much nicer feeling. And the last thing you want is a ruined reputation. And after all of that, you’re not even keeping the money you’ve made. You have to hand it back essentially. So yes, absolutely. Check first, consent first. A breach of somebody else’s copyright is a big deal if they pursue you and take the steps necessary to pursue what you’ve done and seek compensation from you as well, especially if you’ve damaged their reputation, as well as profited from their work.

Clare:

Yeah. I’ve heard some horrible stories in the business world about people’s courses literally being lifted, people recopying their frameworks and distributing it as their own. Absolutely shocking. So I think if you’re ever in doubt, always seek advice. Always seek legal advice from an expert.

Riz:

Absolutely. And there’s actually ways of means to which people can see that you’ve infringed, there’s technology they use in the universities for plagiarism. There’s technology to prove with contents being copied. And I’ve had experience where there’s been blatant word for word, with just some minor phrases changed where there’s been blatant infringement and where I assisted a client and they were able to pursue and seek damages and they were able to receive all the profits in that particular matter. And quite rightly so. It’s really not worth it. Unfortunately, we are in the worldwide web, but everyone’s out there. It’s become easier almost to copy, but I find that originality lasts longer. The person copying and living off of that is never going to be original and they’re going to constantly be chasing their tail.

Clare:

So what if someone has accidentally copied something? So they’ve been caught out, they’ve been sent a cease and desist, but I can really easily see how it could accidentally happen as well. Because for example, in the music space, I’ve listened to artists that have had actions taken against them saying that they’re using a similar type of music and I’m like, “It doesn’t even sound the same to me.”, but a case will be ruled. So same in the business world, I definitely hear people talking about similar concepts. I’m sure in your space, it’s the same, Riz. A lot of people are talking about the same kind of things, right? So if someone has accidentally got in a situation and someone’s issued a cease and desist to them, what’s your recommendation for how to work through that?

 

How to work through a claim against you

Riz:

Yes. So look, unconscious copying, unfortunately you can still directly infringe on somebody else’s copyright, even if you don’t intend to do so. I would recommend taking certain steps. Number one, don’t immediately contact the copyright holder. I know when you’re accused of something, the knee-jerk reaction is to retry and explain your side of the situation. Well, don’t do that because those words could and may well be used against you. And also look, getting a letter of demand that sets out that they’re going to threaten you with court action and penalties and all sorts, it’s quite overwhelming and scary. So the best thing to do is to reach out to and consult with a lawyer as to how best to handle the situation. The other thing is don’t ignore the notification. It’s a bad idea if you’re hoping that it’s just going to go away. And while it can be tempting, it’s not the best course of action, especially when the put down some deadlines for you to respond by.

 

What you can do is at least acknowledge the correspondence if you haven’t had the opportunity to engage with a lawyer straight away, and say that you’ll be in touch once you’ve sought independent legal advice. So it’s important to do that. The other thing to do is to make sure you gather all the facts to determine whether the claim is valid on whether you have in fact breached somebody else’s copyright. And then look at what defenses, if any, you have available to you. And again, your lawyer will help explain all of those things. And certainly, if you feel that there might be a greener truth in that, you might want to stop. If you’re selling any of that work to stop it, pause it, put it on hold, pause any adverts, et cetera, as well, whilst you go seek legal advice.

Clare:

There has been so much valuable information that we’ve chatted about today. If people are listening to this and thinking, “Wow, okay. I am so ready to go and invest in trademarks. I’m ready to protect my business.” How can you support them to do so?

Riz:

Well, couple of ways. One is they can engage my services and we can take the whole thing off their hands and help them by registering the trademark on their behalf. We would do all the work basically of working with them, work on their strategy with them. What is their strategy? What are their plans? Because I like to know these things. It’s important to then map out, well, what classifications they’ll need under the registration for their trademark as well. The alternative as well is I’m in the process of launching a very new course, Tricks of the Trademark. I’m very excited about that one because I’ve listened to my clients and I’ve come to the view that I would rather they have a trademark than not have one, especially if they’ve got big, amazing plans for their business. And so there was a lot of conversations around the expense of registering a trademark because IP Australia charges you their fees.

 

And then lawyers obviously charge you their fees, which is fair enough for the work that’s being done. So the course came about from conversations around affordability and don’t know how to do it, but I can’t afford it. So the course is a step-by-step guide through the application process basically. And essentially, it’s me talk you through the process and kind of metaphorically holding your hand as you go through that application process. So you have me in your ears walking you through the process because I would rather there is some protection and you get that protection as soon as possible and not wait until you can afford it. So the course came about for those reasons, but there’s still the ability to add me on if you’re still not quite confident. So there’s still that ability. And certainly we can still take you off your hands as well, if you weren’t comfortable doing that. So there’s a couple of different options, I guess, is what I’m saying.

Clare:

Yeah. Perfect. Okay. Well, I’m going to put all the links for your course and for your business if anyone wants to get in touch with Riz at Foundd Legal for getting their trademarks sorted here in Australia. And if you’re overseas, as Riz mentioned, make sure that you seek to find a professional in your own country.

Clare:

Riz, I have loved our chat today. Thank you so much for sharing all of your wisdom in this space and look forward to chatting to you again soon.

Riz:

Thank you. It’s been my pleasure.

Clare:

Thank you so much for joining me today. If you enjoyed this episode, please make sure you subscribe to receive future episodes. And I’d be so grateful for a review on Apple Podcasts. If you’d like a copy of the show notes or any of the links mentioned today, please jump over to clarewood.com.au/podcast. And remember that Clare is spelled C L A R E. Have a wonderful week and look forward to chatting to you again soon.

 

About your host

Hi, I’m Clare Wood – I’m a numbers geek, a travel lover, a reality tv addict, and a passionate business coach. I’m here to empower you to create an extraordinary business and an amazing life; because I believe you don’t have to choose between the two.

Follow me on Instagram for daily inspo >>

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