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WA Are We Breaching Copyright of a Product?

Discussion in 'Intellectual Property Law Forum' started by ambziee, 14 June 2016.

  1. ambziee

    ambziee Member

    14 June 2016
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    I am looking at opening up a business that sells candles with quotes on them. If we create these quotes that look similar in style/colour etc to another business but the actual content of the writing is different, then are we breaching copyright? Everything will look the same as this other business but different content.
  2. Louise4007

    Louise4007 Well-Known Member

    8 November 2015
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    Copyright protects the form or manner in which an idea is expressed rather than the idea itself; Copyright relates to originality and creativity in artistic work rather than the physical artistic work or article itself, therefore if you were to be making exact replicas or reproductions of the candles you would need the permission of the owner of the idea to avoid breaching copyright.

    Copyright law does not prevent the use of the same idea embodied into a product if it isn't an exact copy of the original work, so you would be unlikely to be in breach under the Copyright Act according to the information you have provided. Copyright law recognizes that an artistic work (eg.. the original candle design) might give rise to a corresponding design of an artistic work (your candle design), in relation to the original artistic work & it does this by incorporation of the legal principles within the Commonwealth Copyright Act 1968, Division 8

    The Trademarks Act 1995, on the other hand, protects works such as logos, pictures & words that distinguish one work or product from another (think NIKE, Coca-Cola, Big Macs etc) & provides protection for owners of already registered trademarks related to particular goods & services. The Act grants exclusive rights of an owner to use & authorize others to use a registered trademark, therefore, permission from the owner would be required if that were the case. Well-known trademarks such as those mentioned above in brackets would be infringed by a user if trademark use was substantially identical with, or deceptively similar to the trade mark registered.

    Kim Walters likes this.
  3. Leonard Mancini

    4 August 2016
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    Does the "other business" use their quotes on candles? That is, is the only thing different between your candles and their original works the words only or were their words applied to other things like cards or mugs?

    If they sell candles and you use the same fonts and colours to appear like the other business' candles you should be wary of claims of passing off or misleading and deceptive conduct under the Australian consumer law.

    If say, they use them on cards and mugs, the only other way you are likely to get into trouble is if they have registered the quotes as trade marks and they have used them as trade marks. By the sounds of it, however, you are not using the quotes as trade marks but content effectively so you may be OK there.

    I think a lot will turn on whether the other business was using the same get up on candles.
  4. Kim Walters

    Kim Walters Well-Known Member

    18 July 2016
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    The correct approach is to first determine whether the works you are copying are 'original'. To attract copyright protection, a work must be 'original' in the sense that it originates from the creator and is not copied from another person's work. Copyright is about the quality rather than the quantity of what is taken. This varies from case to case. The Copyright Act only grants the copyright owner the exclusive right to do the copyright acts in relation to a substantial part of the work.

    Determining what is substantial will depend on whether what you are copying is a substantial, vital and essential part of the original work. You have to look as the essential feature of the work which is alleged to have been copied. If it is a vital or material part, even though small in quantity, it may still be sufficient for infringement.

    Ultimately, therefore, what is copyright infringement, will depend on the facts. If you copy too much, you are likely appropriating another person’s labour, skill and research beyond what is a fair and legitimate use. You do not need permission to make use of an unsubstantial part of the work.

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