Social media and intellectual property - what are the issues?

The use of social media as a business tool is becoming the norm rather than the exception.

Twitter, Facebook and LinkedIn are just some of the websites used to promote businesses and products, as well as being excellent tools for interacting directly with customers and associates. But there can be risks associated with publishing too much information online, particularly in relation to your intellectual property. What steps can you take to ensure that you are getting the best exposure possible without jeopardising your intellectual property?

Copyright

Copyright protects the way something looks, or the form of expression of a particular work. For example, there may be copyright in the specific layout of a website, and/or the colour schemes, fonts and styles used.

These days there are millions of websites on the internet. To a certain extent there is a basic functionality that needs to be present across all websites in order for them to work properly. There are also some fairly well known rules regarding the layouts, styles or fonts that work best to attract and retain visitors to your site.

As a consequence of this, any "copying" of your site needs to be fairly substantial for copyright infringement to be proven. Therefore, in order to improve your chances of protecting your rights, the more original and distinctive you can make your website the better.

Every website should ideally be marked on each page with the copyright symbol ©, the year of launch and the company or designer's name. If copying ever does become an issue, the presence of this symbol should prevent any infringer from claiming that they "didn't realise" there was copyright in the work.

Additionally, if your website contains information that could potentially be used by third parties and published elsewhere, you may want to consider stating that you assert your right to be named as the author of the information provided from that website. In the event of any copyright dispute in the future, having this statement clearly displayed may help you in your attempt to claim damages. A further option is to use a watermark across any text or image on your site, so that if the user wishes to have a "clean" copy they must obtain it from you.

Trade Marks

Your trade mark, logo or slogan is likely to be a fairly prominent feature on your webpage or social media site.

If you choose not to register your trade mark, you may have some rights under local consumer protection legislation. For example, in New Zealand if you show that you have a reputation in your mark then you may be able to stop other traders from using the same or similar mark. To do so, you would need to go to the High Court and show that the public is being deceived or confused (which can be both costly and difficult). If you do register your mark however, you will have a clear monopoly in your trade mark in the countries in which you have registered.

It is possible to use the symbol TM in combination with your trade mark at any time. If your mark has been registered, the trade mark can be accompanied by the registered trade mark symbol ®.

If your website is directed outside a country in which you have a registration, care should be taken that you are not infringing another trader's rights. For example, you may have a registered trade mark in New Zealand but another trader may own a registration for the same or similar trade mark in the United States. If your website includes information specifically directed at United States customers (e.g. costs in US dollars) then you may be infringing the United States trader's rights.

The safest option is to make it clear somewhere on the website where the registration is held. For example, you may refer to the trade mark registration in the small print and state that "XXXX is a registered trade mark in New Zealand and Australia". If you are looking to expand into additional international markets, it may be worth considering extending your trade mark registration to other countries as well.

Patents

How do patents relate to social media and your online presence? The main issue is disclosure. If your company is using online media to promote your latest research and development, new product or service, you need to think about what information you are providing before you publish it online.

In New Zealand, the public disclosure of an idea or new development may be enough to render it unpatentable. In order for a patent to be secured, the applicant needs to be able to show the invention was novel and inventive at the time of filing the patent application. This means that the information must not have been made public, and as most people know, there is nothing more public than the internet.

Disclosure requirements differ from country to country. The USA and Australia for example have grace periods where an applicant is still able to apply for patent protection following a public disclosure, provided the application is made within a certain period of time of that disclosure.

If you do disclose an idea on your website before a patent application is filed, you may be then limiting your patent protection options to those countries that have this grace period. Therefore any public disclosure of unprotected information could be detrimental.

Blogs and Forums

Online blogs and forums are a great way to increase traffic to your website, and provide the opportunity for real time feedback about your product or service. Again, as with patents, disclosure of confidential information should be avoided.

Some company sites invite the public to submit ideas for new products or for suggestions how existing products can be improved. Often this type of activity will be accompanied by a disclaimer from the website owner stating that by posting an idea, the author agrees to give up rights in the idea to the website owner. This way, should a great new idea (that may be patentable) be submitted, the company may pursue it further.

Again, if this is a tool you are interested in using it would be prudent to review any submissions you receive before allowing them to be publicly posted - this will give you a chance to keep a great idea under wraps and avoid public disclosure. It would also avoid any potentially infringing material being uploaded and possible liability under the proposed new section 92A of the New Zealand Copyright Act.

Generally most blogs and forums are moderated in some way. Even so, it is sensible to ensure you have a disclaimer of sorts that clarifies that the views posted are those of the individual authors and not necessarily consistent with those held by the company.

General Rules

The temptation to put a lot of information onto your website, or to tweet about new advances or discoveries can be great. You may want to promote your company, sell your product or perhaps attract investors. If you are unsure whether something you are posting may turn into a potentially patentable concept in the future - don't post it. It is better to keep something back than to jeopardise your IP rights.

If you are unsure about what information you need to post regarding your existing IP rights, it is always safer to claim too much rather than too little. Make it clear to readers where your registered rights are held and who holds the copyright in your work. Add disclaimers regarding blogs or forums and include contact details for anyone who has a question regarding the content on your site.

If in doubt, contact an IP law expert for assistance.

By Jennifer Lucas and Rachel Dawson