Protecting Creativity

Understanding the complexities of intellectual property and why it is a critical component of brands.

As a professional creative person, I value the work we do to improve the fortunes of our clients. It takes experience, intellectual struggle and many late nights to create something which stands out from the crowd.

We do not do it only for our love of design (though that plays a part). Our clients pay us very well for our work, so it’s natural when someone comes along and blatantly copies your work, you can get rather upset. For our clients however, this can have serious business and financial consequences.

I have written this article to shed a little light on the complex and often neglected subject (by agencies and entrepreneurs alike) of ‘Intellectual Property’. I have shared a story or two and offered some insights on why, in my opinion it is a critical part of brand identity. Full disclosure; these thoughts are based on my personal experience - I do not pretend to be an intellectual property law expert and I always recommend you consult a professional and specialist IP lawyer.

Fresh Thinking or Imitation

Imitation is the sincerest form of flattery.

I have often heard the phrase “Imitation is the sincerest form of flattery”. There is a nugget of truth in it, but I think it depends largely on how you have been imitated and the intent of the imitation. Generally though I’m annoyed. One might successfully argue I’m being a bit ‘precious’, especially when you consider the words of Mark Twain who believed there is no such thing as an original idea. He said we can turn old ideas into new, curious combinations, but he suggested they are “the same old pieces of coloured glass that have been in use through all the ages.”

All ideas are the same old pieces of coloured glass that have been in use through all the ages.

Whilst I totally agree with this statement, I think there is originality in how we rearrange ideas to create something unique, fresh and unexpected. I believe this ‘freshness’ has an intrinsic value which should be protected from those who seek to simply copy, rather than imitate with a goal to learn something new.

As the journalist and author Arthur Koestler once wrote, “The more ‘original’ a discovery, the more obvious it seems afterwards”.

The more original a discovery, the more obvious it seems afterwards.

What happens when you don’t protect your work?

A few years ago I was approached by a client (who will remain anonymous) to redesign their identity. They informed me “our current name doesn’t fit our vision so we’ve come up with a new one. We want you to create the brand”. They said they selected the name because “it was short, to the point and associated with our industry”. They had bought the dot com website address which by itself cost them well over £20K! 

Of course I said, “Great, I’d love to help you. But I’ve got a few questions first”. 

Are you sure you can use the name? Have you secured the trademark?

The client replied “Not yet, but I think we’ll be fine”. I continued:

But if someone in your category owns the trademark for that word, they could have an issue with you using it - we might have to redo everything.

I conducted a quick trademark audit and found a few competitors with some level of connection to the word. Again, I raised the issue, and again I was told not to worry. So, over the following months, my team and I developed a brand strategy and design concepts based on this name. We progressed to design development, finished artwork and brand expression. Our client and stakeholders loved the work. So did we. Everyone was happy and the project was moving forward well. We were finalising brand guidelines and the website design when, out of the blue I got the call.

Hey Gary. Look I’m sorry, but we need to put everything on hold.

My heart sank and even though I knew the answer, I asked the question:

So, what’s the problem?

The client responded calmly:

It seems we’ve got a challenge with the name.

We were disappointed, but not as much as our client who’d spent many thousands of dollars. The work was shelved and time had run out, so instead of a shiny new brand all we could do was update the existing name with a low-level evolutionary solution.

It’s easy to see why one might forgo securing a trademark. Caught up in the thrill of finding a name you actually like and finding an available dot com you want to move forward. Trademarking might seem like a waste of time and money, but as this story shows it can cost much more if you don’t secure it.

What is intellectual property?

Only one thing is impossible for God: To find any sense in any copyright law on the planet.

Mark Twain had much to say about IP and whilst he suggests it is complex the basic principle is not.

Intellectual Property is a legal framework designed to protect the rights of the originator of a work and by implication the owner of the copyright or trademark. It recognises ownership and offers opportunities to seek change, compensation or damages from those who seek to exploit your work.

Intellectual Property is a bit like private property (such as a building or a car) and it can be bought, licensed, sold and protected by law. It is a term of reference for creations of the mind and can include; inventions; literary and artistic works, designs; symbols, names and images. It refers to published works originated or authored by individuals, groups or companies. Just about everything you create can be considered to be intellectual property. The laws that govern it are intricate, often confusing and can appear contradictory. But, it is important because ‘IP’ is inextricably woven into the fabric of our lives; from the products and services we buy, to the work we do. IP law provides an incentive for us to create and innovate in a secure environment, without fear our work will be used or abused by a competing party.

The reason why IP is so valuable is because it defines individuality. The most visible expression of IP is a brand name and an associated logo; just think of Coca-Cola, the Nike swoosh, or the Vodafone logo. These organisations vigorously protect their IP because it is critical to how they differentiate their brands.

You’d be hard pressed to find a single world famous brand which is not trademarked. The Nike swoosh; Bibendum - the Michelin Man; the Coca-Cola script; McDonald’s Golden Arches; the Federal Express ‘Arrow’; and Apple

Different flavours of IP

Broadly speaking there are three key areas which directly effect our work as brand consultants; Copyright, Trademark and Patent. However, there are seven principal forms of intellectual property generally recognised around the world:

  1. Copyright (for works) 
  2. Trademarks (for brands) 
  3. Designs (for the appearance of products, both as structural designs and graphics) 
  4. Patents (for inventions) 
  5. Confidential Information (to protect trade secrets and information not in the public domain) 
  6. Plant Breeder’s Rights (to protect new varieties of plants) 
  7. Technology Rights (to protect original layout designs for integrated circuits, computer chips, software and coding) 

What is Copyright?

Copyright stands apart from other forms of intellectual property as ownership of copyright is automatically assigned to the originator from the moment the work is created and fixed within a tangible medium. Copyright is a system which is largely free with no requirement to officially register ownership, though in some countries there are benefits to doing this, such as when avoiding ‘orphan work’ where the owner cannot be determined or is uncontactable.

Copyright is commonly symbolised with a circle containing a ‘C’ – ©, or as a ‘C’ within a set of brackets – (C), but it is not mandatory to display the symbol next to the logo. Often, a statement of Copyright ownership is often indicated somewhere on a communication, such as in the footer of a website (e.g. Copyright © Propella Pty Ltd).

Vodafone vs Lucent Technologies

Shortly after I designed the Vodafone logo and it had been launched to the public by then CEO Sir Chris Gent, I remember Vodafone’s lawyers informing me they had received a legal notice from Lucent Technologies (a telecommunications equipment company). Lucent believed the Vodafone Speech Mark icon was similar to their ‘red brush stroke circle’ logo, which allegedly represented a Zen Buddhist symbol meaning “eternal truth”. According to Lucent, Vodafone had infringed their copyright and were demanding they change their logo.

The Lucent Technologies logo next my icon for Vodafone. Lucent demanded Vodafone change their logo because they believed it infringed their copyright

Admittedly there was a passing resemblance; both logos were circular and red. As the designer of the logo, I was asked to submit evidence to show how I got the idea so that Vodafone’s lawyers could fight the claim. The icon, I demonstrated was initially derived from the opening and closing speech marks which I’d inserted into the two lowercase “o’s” within the Vodafone word-mark to suggest how the company connect people to talk. I then enlarged and isolated this symbol and positioned it alongside the word. The colour red had long been associated with Vodafone.

My paper trail proved my idea had not been inspired by Lucent’s logo and they subsequently lost their case against Vodafone. Ironically, I was inspired by the work of Landor Associates (who designed the Lucent brushstroke logo), but it was the brand identity they did for FedEx with the arrow symbol formed between the capital ‘E’ and the lowercase ‘x’. I loved the simplicity of this solution and thought Vodafone could use a similar approach.

What can be protected

  • Literature: Unique words, phrases, company names, tag-lines, articles, stories, poetry, books and documentation
  • Visual material: Logos, visual expression, unique shapes, art, photograph, illustration, sketch, typographic arrangement, colour, shape, movies, television, interfaces, products and games
  • Smells: You can even register a fragrance – think of Chanel No.5
  • Sounds: Songs, musical scores, advertising jingles

What can’t be protected

  • Ideas: You can’t protect an idea, but you can protect the expression of it. For example, you can’t protect the idea for a machine which sucks up dirt from a carpet, but you can protect the unique expression of how it works, such as Dyson’s vacuum cleaner
  • Facts and discoveries: A scientist who’s found a new form of life can’t patent it because discovery is not an act of ownership. However, if they create a new form of life, it can be

Misconceptions about Copyright  

It’s often wrongly assumed copyright ownership is automatically transferred to whoever has paid for a product to be designed on payment of an invoice for those services. For example, if you buy a painting from an artist, you own the painting, but you do not own the copyright and the right to sell postcards and posters of the artwork. Unless an agreement has been negotiated, the artist retains ownership of copyright.

A licence giving permission for exploiting the work beyond the purpose for which the item was purchased must be sought from the owner, in much the same way as you would with an image bought from a photo library; you select an image and use it according to the terms of the licence agreement.

Trademark vs Copyright

“Trademarking” is a system of protecting intellectual property which is independent of copyright. For example, it is possible for the originator of a piece of work to own the copyright, whilst the trademark of the entity (when registered) is owned by a someone else. Equally, you can own a registered business name (where the Australian Business Register will not allow another business to use exactly the same name), but this does not give the organisation exclusive rights to use the name as a trademark unless they have successfully registered the name as a trademark.

Transferring Copyright ownership

For a variety of reasons, a client or business may wish to own the copyright of a piece of work completed for them. This requires the originator and owner of the copyright to transfer ownership. This usually attracts a fee more substantial than the purchase of a licence, or even the fee originally paid to commission the work. This is because when ownership of copyright is relinquished by the originator, they lose all rights as to how the work can be used and any fees, royalties or compensation the image might earn forever. Once transferred, the originator is then obliged to seek authorisation for use of their work from the new owner and potentially pay for the privilege.

Do you need to own Copyright

It really depends on how valuable that item is to you. Given the pace of change is so fast, it can be argued there’s little need to buy copyright for work you’ve commissioned - what you use today, you may not need tomorrow. Simply using the work under the terms of the licence may suffice, because next year you may wish to use something different. That said, you may wish to repurpose the work. We usually recommend talking to the owner of the copyright about any changes you may wish to make to the original work. This approach is frequently seen within the work of architects whose permission must be sought before modifications can be made to their work.

What is a Trademark?

In contrast to copyright, a ‘trademark’ requires registration through an appropriate authority in order to be effective. In Australia, this authority is IP Australia; in the UK it is the Intellectual Property Office; in the USA it is the United States Patent and Trademark Office.

There are a few symbols associated with ‘Trademark’. A ‘TM’ indicates an entity has been submitted for registration. It does not mean the registration has been successfully completed. The symbol may be visibly attached to the entity name or logo. It is typically shown on the righthand side – e.g. Entity™ and it may be positioned, sized and styled in a sympathetic and appropriate way.

Successfully registered trademarks use the symbol of an ‘R’ contained within a circle and can also be connected to the brand or product name, e.g. Entity®. Music may also be trademarked and it is symbolised using a ‘P’ contained within a circle, e.g. Sound℗.

Whilst these symbols do not need to be displayed, it is an outward show of ownership which encourages respect for your trademark. It can be useful from a legal perspective to demonstrate you have displayed the symbol if you are engaged in a dispute. It should be noted that it is against the law to use the (R), (TM) or (P) devices if formal registration has not been sought or has been successful.

Benefits of the Public Domain

Gerald Holtom never sought trademark registration of his CND logo which contributed to it becoming a global icon

Sometime, it can actually work in the favour of a brand to not enforce copyright ownership or seek registration as a trademark, such as the now famous CND logo which was designed by British artist Gerald Holtom in 1958. Because trademark application was never sought, it became possible for the logo to be widely adopted by the general public and the counter culture community as a general purpose symbol for peace, thus contributing enormously to the symbol becoming one of the worlds most recognisable symbols.

What is a Patent?

Traditionally a ‘patent’ operates to protect the mechanical or engineering principles of a product. According to IP Australia, a patent protects any device, substance, method or process that is new, inventive and useful. A patent has to be applied for and the cost of application can vary dramatically; from $110 for a provisional patent, to several thousand dollars for full protection. You will find thousands of patents applied for technology or software in Silicon Valley and (controversially) amongst genetically modified products.

Dyson vs Hoover

Dyson expanded his cyclone technology far beyond vacuum cleaners

British inventor and entrepreneur James Dyson had developed ground-breaking cyclonic, bagless vacuum cleaning technology. He then approached the established vacuum manufacturers with his idea, but because they did not want to disturb the valuable market for replacement dust bags, he was turned away. Instead of giving up, Dyson personally launched the pink coloured G-Force cleaner in Japan through catalogue sales. His invention became the fastest selling vacuum cleaner ever made in the UK, outselling the products of those who had rejected his idea.

Following his success, other manufacturers began marketing their own cyclonic cleaners. Fortunately, Dyson had had the foresight to file patents for his technology. He successfully sued Hoover for patent infringement with the High Court ruling that Hoover had deliberately copied a fundamental part of his designs. This cost Hoover £4 Million in damages.

What to do if your rights are infringed

Don’t panic

Before you seek advice it is worth doing some research first. Is the entity who you believe are using your intellectual property actually presenting a problem? Perhaps they operate in a totally different class to you or they may be unaware of an infringement. Also, it is not always an issue if you do not have ownership of trademark, so long as you can demonstrate “prior use” meaning that evidence exists which can prove your company or product name was being used in the public domain before a trademark was submitted by a competing party.

Always seek expert advice

Other than our first-hand experiences with trademarks and copyright issues, I do not pretend to be an intellectual property expert. I always recommend using the services of an expert IP lawyer to understand and protect your position. Of course, it is possible to manage your own intellectual property, but there are many complexities, such as which classes or countries you should register in, or when, or if you should pursue enforcement of your rights of ownership if you believe someone has infringed your rights.

We have worked with several great IP lawyers over the years and recommend the following: 

Blair Bevan is the National Head of IP at Holding Redlich and has a wealth of experience with top-tier IP legal firms. He was also responsible for helping us secure Propella® as a registered trademark.

Rachael Triplow is the owner of boutique IP legal firm aRc based in New Zealand. Rachel has helped us protect the intellectual property for various projects internationally, including Munchie Picchu and Brazooka.

The future of IP

There is no doubt that intellectual property law will continue to be an intrinsic part of brand identity and a mechanism for protecting creative endeavours. In particular I am interested to see how it will apply to products created by artificial intelligence.

Perhaps, this in time will require an article of its own.

Further Reading

More information about intellectual property can be found online:

Australia — IP Australia

United Kingdom — Intellectual Property Office

United States of America — United States Patent and Trademark Office

WIPO — World Intellectual Property Organisation

Recommended Books

Owning It by Sharon Givoni provides a comprehensive (and comprehensible) introduction to intellectual property and copyright law.

Thank you!

If you have any questions or would like more information please send us an email via the link below and let us know how we can help.