The limits of the law

One of the biggest misconceptions we see amongst clients and the general public is the belief that if they have a good idea, they can protect it.

However, if you take away only one thing from this article, let it be this – ideas in and of themselves generally cannot be protected in their own right.

Wait – what? Even if my idea is highly original?

That’s correct. Australia’s intellectual property laws are underscored by key policies such as the notion that everyone should have democratic access to ideas. Taking this further, the laws suggest that a person should only be granted ownership (or a monopoly) over the sweat and labour they have put into materialising a particular idea.

This says nothing of the question that goes to the heart of the matter – is originality even possible in this day and age? If the answer to this question isn’t a simple yes or no, how do we determine what is actually an original idea?

Ultimately, intellectual property laws are designed to encourage people to build freely on the shoulders of giants.m

The Myth of the Original “Eye-dea”

To set the scene, let’s take a closer look at an example of the cyclical nature of ideas.

Use of the “evil eye” motif is no stranger to the fashion industry. In fact, a quick search for “evil eye” on Etsy yields almost 200,000 search results.[1] From its talismanic roots to modern interpretations featuring on earrings, necklaces and even bags, the evil eye is undoubtedly a popular device for designers.

One prominent example of this popularity would be fashion house Kenzo, which has become known for using an eye motif not unlike the evil-eye on its clutch bags, jumpers and other apparel. Kenzo undoubtedly treats its take on the evil eye idea as a valuable brand asset, having registered the following as a trade mark in the European Union for apparel, bags, jewellery and other products:

However, Kenzo is by no means alone. Luxury jewellery brand Begum Khan offers various goods featuring its interpretation of evil eye under its ‘Lucky Talismans’ collection, including clutch bags, necklaces, cuffs and earrings.

Similarly, consider fashion brand Comme des Garçons, which has become synonymous with its heart shaped logo featuring a pair of slightly misshapen eyes. It is arguable that the brand began with the idea of an eye-like talisman, and, background of another commonly used motif in fashion – the heart.

We could go on in an endless list of famous uses of the eye motif, but Audre Lorde sums it up perfectly:

“There are no new ideas. There are only new ways of making them felt.”

What Can the Law Do For Me?

So you might be thinking that all you need to do is to find “new ways” of making an idea felt.

This might seem quite straightforward, but it is actually an incredibly nuanced and complicated area of law.

This is where lawyers step in – we can help clients determine what they can and cannot carve out.

Do I need copyright, design registration, trademark registration or a patent?

First things first, it is important to determine what it is that you want to protect. When it comes to a piece of “communicated” work, such as a literary, dramatic, musical or artistic work, copyright will provide you with certain rights.

If you are primarily concerned with the look of your product, design registration is the protective tool you are looking for. Meanwhile, logos and branding devices are covered by trade mark registrations and a device or process is generally protected by a patent.

Another way of protecting your particular idea is just to keep it secret or “confidential”, which is frequently down with content such as a secret recipe or a supplier list.

It’s All about How to TURN YOUR IDEAS INTO ASSETS ™

Beyond determining the basic area of intellectual property suited to your goals, there are also many other strategies and methods you can use to TURN YOUR IDEAS INTO ASSETS ™.

Sometimes, it’s a matter of:

  *   Keeping detailed records of your works in progress and iterations of your creations

  *   Audio-visual recording of a dance routine to ensure it is captured in material form

  *   Implementing a strong marketing strategy to ensure your trade mark operates as a “badge of origin”

  *   Using certain symbols with your intellectual property assets, including the “(tm)” symbol, the “©” symbol, or indicating your product is a “registered design” as a part of educating your consumers and warning competitors…and the list goes on.

Often we see clients with ideas that are the life-blood of their businesses, but failing to take that further crucial step to TURN THEIR IDEAS INTO ASSETS ™.  What this means is that when it comes to actually enforcing their intellectual property against the endless copycats out there, it becomes incredibly difficult and are often stuck between a rock and a hard place.

As lawyers, we always recommend a proactive approach to ensure the necessary strategies are in place at the outset to ensure you are protecting your most valuable assets.

Having the light-bulb moment in the shower is the easy part. Whether that spark can turn into an asset is a whole other kettle of fish, and is often the crux of the legal question at hand.

Great inventions that have occurred in the window furnishings industry

Venetian Blinds – In 1769, it is said that Englishman, Edward Bevan patented the world’s first Venetian Blinds. This invention came about when Mr Bevan manipulated the blinds to be of any size by using wooden slats and placing them onto an aluminum frame

Curtains – On or around 3100 BC, the Egyptians invented Curtains that were made of animal hides and hung them on hooks in their doorways as a way of providing shade and warmth. Over the years, the Egyptians modified the Curtains and made them out of wool, silk and cotton. Today of course we have materials such as velvet, linen, sheer and polyester.

Roller Blinds – Roller Blinds originated in Scotland in the early 1700s. To open the blind, one had to pull on a cord connected to a rod at the top and once the blind was closed, the fabric of the blind would lie in folds on the ledge of the window.

Pinoleum Blinds – In 1872, the Paris Ballauff factory originally manufactured Pinoleum Blinds for purposes of colonial décor. Pinoleum Blinds are made from thin and lightweight reed, bamboo or wood-weave Pinoleum slats and act to beat the heat of the sun while also allowing natural light through.

Japanese Shoji Screens – On or around the 7th century, Japanese Shoji screens were invented by modifying them from Chinese folding screens that were imported to Japan around that time. Japanese Shojis screens are used as windows or doors and because they are so thin and light, they do allow some light to come in.

Vertical Blinds – In 1950, Edward and Frederick Bopp from Kansas City are known to have invented and patented the Vertical Blinds. Thereafter, Vertical Blinds continued to evolve over the years and are available now in a range of different materials.

Roman Blinds – Over 2000 years ago, the Roman Blinds, as the name has it originated in Rome during the reign of the Roman Empire. Roman Blinds arose out of necessity to keep homes dust-free and cool, rather than for home décor purposes and was simple, yet innovative and practical.

Awnings – Awnings were first utilized during the ancient Egyptian and Syrian civilizations and were known as ‘woven mats’ that served to shade homes and market stalls. Awnings have been modified over time since then with retractable awnings now allowing one to unroll and roll the awning as they see fit.

Electric Blinds – On 21 August, 1841, John Hampson, an American patented the Electric Blinds. Electric Blinds are now commonly used for their automation purposes.

Soundproof Curtains – In around May 2011, Researchers at Swiss Federal Laboratories For Materials Science and Technology (EMPA), in collaboration with the textile designer Annette Douglas and silk weavers Weisbrod-Zürrer AG developed lightweight and translucent Curtain materials that were good at absorbing sound. This technology is now routinely used in many home.

Magnetic blinds, which are new type of window treatment that uses concealed magnets to attach to the window frame instead of screws or adhesives, the advantage being that they are install and remove, making them a great option for renters or those who want a temporary solution.

Anti-Microbial Curtains: With the ongoing COVID-19 pandemic, there has been an increased interest in anti-microbial curtains that can help prevent the spread of germs and bacteria and are treated with antimicrobial agents that kill bacteria and viruses on contact.

 Energy-efficient curtains to insulate rooms by reducing heat loss during winter and blocking out heat during summer.

Self-Cleaning Blinds: A Swiss company has developed blinds that are coated with a special layer that repels dirt and dust.

IKEA’s Air-Purifying Curtains – GUNRID: The technology is unique and innovative and consists of a mineral based, photo catalyst coating that is applied to the textile. When activated by light – both indoor and outdoor light – GUNRID breaks down common indoor air pollutants.