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Editor's Desk

Coleby Nicholson
Coleby Nicholson

Understanding copyright protection

Protecting your intellectual property is a complex matter and COLEBY NICHOLSON says before you start a legal battle you better know the facts or you could look dopey.

I receive lots of silly emails – and I don’t mean from Nigerian scammers and potential Russian brides. I’m talking about legitimate emails complaining about jewellery industry problems and seeking assistance.

You’d be surprised at some of the things that come across a journalist’s desk – I even receive the occasional email seeking legal advice!

I remember a doozy: a consumer asked me to help him fight an insurance company over the theft of his jewellery from a hotel room while on an overseas holiday. Apart from advising that we couldn’t help him, the whole saga seemed rather ‘suss’ given he had taken photos of the jewellery in his hotel room safe to prove he had the items with him on holiday in Cyprus … before it was suddenly stolen.

Then there was a guy in a legal fight with a business who contacted me to complain about a story we’d run some 18 months earlier. It didn’t take long before I started to think he was a little loopy but I gave him the benefit of the doubt – right up until he said ASIO was recording our conversation and that he was going to subpoena me to appear in court.

I reminded him that I hadn’t even written the story and I knew little about the issue, but that didn’t seem to matter to him, I happened to be the guy on the end of the phone so he was going to subpoena me!

Legal threats
No matter how weird or crazy the emails or phone calls are, I always try to extricate myself from the issue in a polite and courteous way. Well, almost always.

A few months ago, I received a ridiculous email essentially threatening legal action. Journalists often get legal threats and I have had more than my fair share. This time it wasn’t over a story we had published it was to do with an intellectual property (IP) matter and I wouldn’t have minded receiving such an email if the person knew what she was talking about.

The woman contacted me regarding a domain name I’d registered. Her unexpected email stated, “We would like to purchase XYZ [website title] from you. Please note we have copyrighted the name ‘XYZ’ in both Australia and the US. If someone else, such as yourself, tried to publish a magazine of this title, we are protected by our copyright.”

Now, it’s not so much that she decided to begin a commercial negotiation with a threat, namely, “Sell your website name to us or we will sue you.” Of course that’s not a very good way to start a discussion about a matter from which you wish to benefit financially, but what made the matter worse is that her understanding of copyright law was completely dopey.

Copyright refers to creative and artistic works and has nothing to do with everyday usage of words and terms. For example, my stories are automatically protected by copyright as a created work but I can’t ‘own’ the individual words. They are not my IP to protect.

The woman’s email made me realise most business people don’t have any knowledge of the law even though they think they do. For example, I often field emails and phone calls from people in the jewellery industry who believe they have a right to stop someone else using certain words in their advertising and promotion campaigns.

In essence, you can’t copyright generic English and that’s where many jewellery businesses are confused. Just because your ads use phrases like ‘Australian pink diamonds’ or ‘outback opals’, or your website describes your business as ‘the charm specialist’, doesn’t mean you can stop others from using those words because they can’t be copyrighted. They are not a creative and artistic work.

Indeed, even if your store name is, in fact, The Charm Specialist, anyone can still use those words. They could even register the same company or website name if available. You could trademark the design of a logo that uses those words, but again, you would have no IP rights to the combination of the words and would only be protected for the way they appear in your logo.

Copyright, trademarks and design protection
IP involves many aspects, including design, trademarks, patents and, of course, copyright; however, it is a complex matter and just because your competitors use similar or exactly the same things doesn’t mean you have the right to legal recourse.

As a guide, the expression of an original idea is automatically protected by copyright the moment it’s created. Nothing needs to be registered mainly because it deals with artistic works. Technically, copyright law can provide protection to jewellery designers from would-be copyists however proving copyright infringement in court is a lengthy and costly exercise.

Design, on the otherhand, refers to the visual appearance of a product and can be registered at IP Australia, the government agency responsible for intellectual property administration.  A design registration can help protect an individual product design from being copied.

While design registration protects what a product looks like, a trademark goes one step further: it protects an overall brand or label. The owner of a registered trademark may protect their business against counterfeiting, by commencing legal proceedings in the case of an unauthorised use of the brand name.

This is the issue that confuses most people because it’s very difficult to trademark generic words or terms, however you can trademark the graphic design of the way those words look or are used.

This is the area that I, as a journalist and editor, frequently get called upon to ‘stop’ others from doing something, like using specific words in advertisements. My advice is always that we are not the Police; we can’t stop anyone from doing anything and anyway, almost every time the complainant has no case because they don’t fully understand IP law.

Because someone is using the same words or description as you does not infer any enforceable rights, on either of you.

And finally there is a patent, which protects how a product works or functions. Jewellery designers can use patent law to protect any unique system that they have applied to a product – the threading system for Pandora charm bracelets is one example.

Mind you, some of the issues I’ve had to deal with are bizarre; many years ago a local gemstone dealer demanded that I stop another supplier from using an image of a leopard in their advertising campaign because he used a cheetah!

If you want a more thorough understanding about IP and how to protect it, email me because we have an excellent story written by a legal expert.

So what happened with the woman who threatened me about the “XYZ website” name?

Well I replied; “Can I respectively suggest that you seek professional legal counsel before you go firing off emails to unfamiliar third parties claiming you will stop them doing things of which you have no legally enforceable rights to do. Not only is it a most unprofessional practice, it is, indeed, quite bizarre!”

I also told her that her email would make for a great story on IP law. I never heard from her again.

Coleby Nicholson

Former Publisher • Jeweller Magazine

Coleby Nicholson launched Jeweller in 1996 and was also publisher and managing editor from 2006 to 2019. He has covered the jewellery industry for more than 20 years and specialises in business-to-business aspects of the industry.

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