Today will mark the final day of trade show Fashion Exposed autumn/winter 2015.
We look back on top tips we learned from last year's business series.
K&L Gates: Savannah Hardingham, senior associate.
1. What are the most common legal pitfalls for brands on the internet?
Trading or marketing your goods on the internet is an important way to widen the audience for your brand. But the same rules generally apply whether you are operating in the 'real' world or the online world.
It is, therefore, important to be mindful of how much easier it is to put out information online, and to ensure there are proper protocols in place or consideration given before engaging with social media and tools such as search engines.
Some of the questions businesses should ask themselves prior to utilising online tools are:
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Are statements they are making true and verifiable?
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Do they own, or have permission to use, the trade marks, videos or works (such as written pieces or artistic works) that they intend to use?
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Do any of the statements they are making hurt someone else's reputation?
2. How can businesses protect their brands on the internet?
The misuse of a brand's intellectual property on the internet can be enforced through the same legal mechanisms available in the non-online space.
The first step is for businesses to ensure they own and protect their intellectual property. For example, they should seek to register the following intellectual property rights (in Australia and in any other countries in which the brand does business or intends to do business) at the earliest opportunity:
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trade marks (for the brand name, taglines/slogans, and logos used to identify their goods and services)
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appropriate domain names (that incorporate trade marks or trading names of the brand)
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designs (to protect the overall appearance of a product, including a garment design)
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patents (for any device, substance, method or process that is new, inventive, and useful).
In respect of designs and patents, it is critical that protection is sought before the idea or the products these are embedded in are released to the public (including by disclosing these on the internet). Businesses should seek legal advice if they think they have any valuable design or patent rights that require protection.
Businesses should also keep an active watch over the behaviour of their competitors and consider whether that behaviour infringes on their rights and seek legal advice when they are concerned about third party behaviour.
It is also a good idea to monitor sites such as eBay, Google and YouTube to see whether their trade marks, designs or copyright works are being misused and, if so, consider what action should be taken. These sites often have avenues through which complaints can be made by a party who considers its intellectual property has been infringed, which operate in conjunction with traditional legal mechanisms that can also be utilised to protect intellectual property rights online.
3. Give us a case study of a brand which has had legal mishap on the internet.
In the recent Federal Court case between Leah Madden of swimwear brand White Sands Swimwear and leading swimwear brand Seafolly, Ms Madden was ultimately ordered to pay damages for the reputational harm she caused to Seafolly through posting comments on social media. Ms Madden, after seeing a photo of Seafolly swimwear in a magazine, had posted various comments on her personal Facebook page and the White Sands Facebook page implying that Seafolly had copied her swimwear designs, which the Federal Court found to be false, misleading and deceptive.
4. Has technology and the rise of social media hmade the retail landscape harder to navigate (in terms of legal issues)?
While the internet generally, and social media in particular, offer new and more immediate means for retailers and brands to reach their customers, the legal issues associated with traditional ways of doing business are, for the most part, equally applicable to internet based commerce and marketing.
Companies and individuals can find themselves in legal trouble, however, as, in the online environment, it is becoming increasingly common for retailers to wear a variety of hats and fulfil roles that would previously have been undertaken by a range of third parties. For example, it is now commonplace for retailers to perform functions previously carried out by advertising and marketing agencies. This can be problematic when retailers are not aware of the considerations and traps to look out for.
5. What are the most common mistakes made by retailers which land them in legal hot water?
Some common legal mistakes made by retailers in the online environment are:
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not adequately protecting their intellectual property rights (eg, by registering trade marks, domain names and designs), or not seeking the right protection in a timely manner and then needing to wrestle their brand back from another entity
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making misleading and deceptive statements online about their own goods or services (for example the origin or quality of the goods, or by promoting the goods/services by reference to online posts they claim are from third parties), or the goods and services of third parties
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infringing the intellectual property rights of third parties by using trade marks, videos, written pieces or artistic works such as photographs, graphics or drawings that they do not own or have permission to use
or
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defaming a third party by making statements online that damage that person's reputation.
The risks of making these mistakes can be reduced by retailers being aware of the potential legal issues set out above, and by seeking legal advice when in doubt.