I am often approached by designers and people involved in branding with issues relating to who is responsible if something goes wrong with a design/brand they have created or worked on.
Unfortunately this type of issue is likely to come up at some stage in your career – and it can be quite unpleasant when it does.
Could you be liable in this instance if your client is sued for infringement?
The answer is that yes, this could potentially be a risk for you, unless you have specifically protected yourself in your client agreement. But the reality is that even if you have craftily created a clause in your agreement that says that you have no responsibility, and your client has all liability for infringement of other people’s intellectual property rights – your client is NOT going to be happy if they find that the work that you have produced lands them in legal battles.
So it is important to be clear and upfront about these issues, and to make sure you have thought about and covered off questions like:
- Who is going to be responsible for having legal searches, checking and clearances done?
- Who is going to be responsible for checking that this branding you are creating isn’t infringing registered trademarks?
- Who is responsible for making sure that the branding you are creating is capable of trademark registration, or other IP protections, at the end of the day?
What can you do to protect yourself and your business?
- Make sure your client agreement is updated and is clear on the issues above.
- Ideally, ensure that any branding you propose has had legal clearance checks performed on it. (for example many of our clients will have the searches done in the design phase – helping to save a hell of a lot of time later down the track if the work infringes someone else’s rights, falls foul of the law, or just simply wont be something that will be protectable at the end of the day)
- Suggest that your client consider an application to protect their brand – BEFORE they start using it. You should ensure this is also done in writing so you can prove that you had suggested this. If they refuse, then make sure you document that, so you have something to refer back to in the future if something goes wrong and they try to come after you.
If you have any questions at all about this area, contact us at any time – we have lots of resources available for organisations involved in design and branding, and are always happy to help. Call us on 02 8006 0830 or pop us an email: [email protected]m.au
Disclaimer: The material contained on this website is provided for general information purposes only and does not constitute legal advice. You should not depend upon any information appearing on this website without seeking legal advice. We do not guarantee that the contents of this website will be accurate, complete or up-to-date.