Taking on the big guys - know your intellectual property rights

Eugene Young (pictured) and his wife Marie own Super Tyre Guy on Puke Road, Paeroa.

A Christchurch cleaning company has been warned to change its branding or face legal action from US entertainment giant Universal.

Bridgit Veenings, who owns Minions and Me Cleaning Ltd based in Christchurch, said she received a letter from Universal Studios asking that she change her branding and cease using the name Minions and Me.

In the letter Veenings was told she had 14 days to respond and confirm she had complied with Universal's demands.

Veenings is one of a number of New Zealand business owners who have been caught up in intellectual property battles. Earlier this month a locally owned tyre shop in Paeroa was told by entertainment giant, DC Comics, to change their branding after the owners rebranded their business to include a superhero.

The blue and orange superhero holding a tyre was pulled up for its similarities in outfit, colour and the five sided diamond pictured on his chest to that of Superman.

Auckland barrister David Marriott said intellectual property breeches occurred frequently in New Zealand.

"They happen quite often and most of the time they are inadvertent and people simply didn't know that the other person had rights that they are breaching," Marriott said.
"Then there are also a significant number of cases where people think, that's a good idea, I think that will help my business and they either turn a blind eye to law or they just take ideas."

What is intellectual property?
"With intellectual property law we are concerned about people taking other peoples' ideas or aspects of their ideas. There are many different forms that may take such as trademarks or brands which can be names or slogans or getup, how they look and feel which people use to identify goods or services as coming from a particular source with being their own," Marriott said.

"Another aspect is copyright which protects the time, labour and skill someone has put into creating something. That time, labour and skill will result in a particular expression such as an artistic work, a media work, a written work, and they can stop other people from taking advantage of that time and labour. Then there is also patience which protects peoples' inventions."

What does a judge look at if a case goes to court?
"Firstly whether the plaintive has actually created or dreamt up what they think they have, in other words, do they have the right to protect that which they say is theirs, and then secondly they look at whether the other person has infringed their rights, so is what the other person is doing the same as that which the first person was entitled to protect," Marriott said.
"They look at whether what someone is doing might mislead people into thinking they in some way linked to the claimant."

Does it matter if it wasn't intentional?
"Normally whether it was intentional or not doesn't have an impact when you have infringed. What it might have an impact on however, is what damages you have to pay and whether you are liable to compensate the other person for loss," he said.
"In most areas of intellectual property you can be liable for additional damages if your conduct is flagrant and you have gone out to copy them or abuse their good will."

How can businesses avoid breaching intellectual property laws?
"If businesses receive a letter warning them of a breach they should consult a lawyer as to whether they are actually in breach of intellectual property rights unless they can see they have [obviously breached rights].

"If anything it has become much easier to check if you have infringed because we have the internet and we can carry out a significant amount of searching ourselves and there are online databases which allow you to search for trademarks and patients.

"The best advice is to take whatever steps you can to determine whether you are likely to have infringed before you start doing something new because after, if it turns out that you have infringed, you are going to have to interrupt your business to change your branding."