How to protect your intellectual property in business: Trademarking online courses and programs
If you are an online course or program provider or are considering pivoting towards the online learning space, you’ll need to know how to protect your intellectual property in business and in your course or program.
The online space sometimes feels like a free-for-all Wild West when attempting to protect and defend your intellectual property rights. Discovering you have been ambushed by a competitor misusing your content hits you like a body blow, and you feel betrayal and anger. These days, it can be too easy for someone to hit ‘copy + paste’ on the courses or programs you are providing, or buy your course and then copy it. Not only can this damage your brand, it can send prospective customers in the wrong direction.
Protect your IP with these editable T’s & C’s”:
Clients often come to us saying, ‘Someone’s copied my online course’ or ‘Someone’s copied my sales page. What do I do?’ You may have more tools in your arsenal than you think. Understanding how to protect business assets that you have worked so hard to create is the first step to building a fortress around your online course or program. Let’s take this scenario for example:
A case study in how to protect your intellectual property in business
An online mastermind program provider (let’s call her Ms X) was most distressed to discover someone else selling an almost identical program in name, design and content.
After chatting with us, Ms X decided to respectfully approach the other online provider and raise issues around the similarity of their content. She was able to protect her business assets by asking that the content be removed, as she was operating under a trademark. What could have been a costly headache was quickly resolved. The other provider agreed to change the name, copy and branding of their program.
Even though Ms X’s trademark application with IP Australia was still being processed when the other course sales page was discovered, it provided an extra shield of protection that strengthened her position to avert what could have been a disastrous issue.
What is a trademark exactly?
A registered trademark can be a valuable tool to protect your online intellectual property (or IP).
This article breaks down some trademark basics, outlining:
What a trademark is
What a trademark is used for
How to protect business assets by trademarking
In short, a trademark provides brand protection by distinguishing intellectual property (IP) as unique to other business products or services. A trademark can be a phrase, words, numbers, letters, a logo, an image, a sound, movement, shape or scent.
Trademark registration lasts for 10 years and is available in Australia and internationally (with a separate application for international claims). Trademarks provide the exclusive right to use the Ⓡ symbol, which shows your ownership and the ability to defend your mark, adding value to your intellectual property and business.
Trademark vs Copyright
Trademarks are often confused with copyright, which is a different IP form. As the name suggests, copyright covers the original copy of your work. Unlike trademarks, you don't need to apply for or register a copyright. If your terms and conditions are up to scratch (talk to us if you're not sure), you can assume copyright protection, whereas you need to apply for trademark registration formally.
In the case of an online course, copyright would cover any text on your web pages or original photos, whereas the name of your course, logos, repeatedly used phrases, or methods you have conceptualised will be considered likely trademarks.
How do trademarks protect a business?
A trademark is used to protect your brand or name and to stop others from using it.
Under the Competition and Consumer Act (Cth) and the Trademark Act (Cth), you are entitled to take legal action if someone breaches your trademark by 'passing off' their product or service as yours.
To prove a breach, you must:
show that the infringement is substantially identical or deceptively similar Ⓡ
demonstrate that the infringing mark is closely related to your goods and services
establish that the infringement is likely to cause deception or confusion
Even if a course provider hires a subcontractor to design their online program, and they happen to reproduce your content in full or part, the buck still stops with the owner to proof and sign off on all content, so you need to be really mindful of this.
What to do if your trademark is breached
In cases where your trademark has been breached, it is strongly advised that you seek expert legal advice. Depending on the situation and who the person breaching your mark is, the following options may be applicable:
Issuing a cease and desist letter
Contacting the person who has infringed your trademark and/or copy
Going to Court (injunctions and damages claims)
It is important to take steps to monitor your trademark after it has been registered. An economical way to do this is to set up a Google Alert to track your brand words and notify you when they are being used. A Google Alert has the double purpose of notifying you that someone may be using your material where they shouldn't and providing valuable insights on where your brand is mentioned. Of course, we are also able to help with a trademark monitoring service if you feel that is something you are interested in doing.
The process of achieving a trademark for online courses
Is trademarking just something else to add to your to-do list and seemingly never-ending expenses? Is it really worth the effort?
We get it – the administrative process of trademarking your brand may not be the most thrilling part of launching an online course or program, but think about the ramifications if all your hard work was sidelined.
Just imagining it is enough to make your blood turn cold. Given the time, energy and effort that goes into creating a course or program, it is distressing to hear of people who are powerless to do anything about their online content being stolen because they have neglected to trademark their material.
It's important to remember that trademarking is an investment that lasts for 10 years – sort of like long-term contents insurance for your online course!
Trademarking has multiple benefits, including avoiding breaching someone else's trademark by mistake. The research we conduct at the start of the trademarking process ensures that your name or similar name doesn't already exist. If there is a clash, most often, we can work with you and possibly your graphic designer to re-work your name and/ or logo and move forward with protecting it. But it is always better to catch it earlier rather than later. Even before you are at the trademark stage, it is wise to Google name ideas to see what is out there. Think of it as putting out a stray spark from a fire before it develops into a wild bush fire.
As well as protecting your intellectual property, using a trademark can also provide positive publicity for your business (such as in podcasts or blogs) by adding gravitas to your brand and the services you provide.
How long will it take to establish a trademark for an online course?
Registering a trademark typically takes 8–10 months (including international treaty obligations, which require us to wait certain time periods during the process), but we can provide clarity on whether it is advisable to proceed with a trademark in the first couple of weeks. In addition to our checks on trademark availability, we provide you with a pre-application report from the Trademark Headstart service with IP Australia within the first 5 days. These insights allow us to overcome potential issues by making early amendments.
Four trademarking tips on how to protect business assets
1. Refine names or phrases that are too descriptive
People fall into the trap of being too descriptive in their trademarks, increasing the likelihood that other people might take and use those words.
2. Trademark your program or course name
Trademarking protects the public reputation of your course, which can often become more well-known than the business itself. This is why it is always essential to trademark the program or course name in addition to your business name.
3. Make your trademark unique
It is sometimes a good idea to experiment with incorporating a phrase or key term into a logo to create an unmistakable association with your brand.
4. Consider current and future trademark needs
You'll need to register your trademark under the appropriately matched categories, depending on your audience and content type. There are 45 classes of goods and services in Australia, and believe us, you don't want to be paying between $250 to $330 x 45 to cover every base.
We work through trademark strategies and future business goals with our clients to narrow down what you'll need now and how you can cover yourself for trademarking different items later down the track. For example, you may have plans to produce merchandise, start selling templates in an online shop, or your course may evolve into a membership program.
Related Articles: The Next Step - Have you considered licensing your method?
Protect yourself from online course copycats
It doesn't matter if you are a one-person startup or scaling up, knowing how to protect your intellectual property in business will ensure you are able to leverage your online IP for future growth. We have created templates to ensure your copyright is adequately protected for online courses, online programs, or memberships. At The Remote Expert, we can help trademark a range of products and services, including online courses, programs, and memberships. Book a time here to get the ball rolling on developing your IP strategy.
