I Sell On a Marketplace. How Should I Protect My Intellectual Property?

Selling your unique goods or services on an online marketplace has a variety of benefits. These platforms provide an already established platform to sell on, with existing customers to sell to. Still, marketplace intellectual property rules do exist, and counterfeiting is a real issue on some platforms. If your intellectual property provides value for your business, you need to look into what legal protections would be appropriate. This article will go through available legal protections for your intellectual property and how this relates to selling on an online marketplace.

How You Can Protect Your Intellectual Property

Intellectual property refers to original innovations or abstract ideas, sometimes known as ‘creations of the mind’. By all means, you can own intellectual property as an intangible business asset, just as you would for physical assets. When you have intellectual property rights in an idea or image, you have exclusive ownership and the right to use the said intellectual property. If someone else uses your IP without your permission, then you have legal options available.

You can protect your intellectual property with the following legal protections laid out below.

With most intellectual property protection, you have to register your distinct ownership with the Intellectual Property Office of New Zealand (IPONZ). However, some kinds of intellectual property gain automatic protections. These are:

• unregistered trade marks;
• copyright;
• trade secrets; and
• information contained in confidentiality agreements.

For example, you do not need to register a trade mark to use the (™) symbol on your intellectual property. However, if you want to enforce your exclusive IP rights, you need to be able to prove that: 

• you have an established market reputation with that trade mark; and
• customers associate your business with it.

Deciding What to Protect

Your unique business name or brand will likely bring value to your business and enable you to stand out in the market. When you can, you should take steps to protect your intellectual property.

However, depending on what you want to register, this can be an expensive and time-consuming process. Most IP rights will take a minimum of six months to obtain (if they are not automatic and free), and costs can range from $100 to $5,000. You need to regularly renew your IP registration and actively pursue those who use your IP without your permission.

You should weigh up these factors with the consequences of someone using your intellectual property as their own. 

For example, if you sell your art prints on Etsy you have inherent copyright over those creative works, but not the unique pseudonym you sell them under. Nonetheless, if someone else is selling art prints under the same name as you, this could cause confusion and draw away potential customers. It will be significantly easier to stop them if you have registered IP ownership over that name.

Operating on a Marketplace

When you sell on an online marketplace, you agree to the terms and conditions that they set, which they can set out in a marketplace vendor agreement. For one thing, a condition they may have is that you grant them a licence to use your intellectual property, which may apply even after you stop using their service.

Accordingly, this means that you give them the right to use any IP you upload to the site. Whilst you still own the content, they can use your business name or products for their own purposes, which they will detail. Indeed, be sure to read through any terms and conditions related to an online marketplace’s usage of your intellectual property thoroughly.

Dealing with Infringement

When you have an identifiable IP right, you can stop others from using your IP without your permission. This is particularly important on online marketplaces, where sellers may sell counterfeit versions of your goods. Most marketplaces will have a set process for dealing with counterfeits, which usually involves you:

• informing them of the infringing seller; and
• proving your exclusive IP rights.

By all means, this is significantly easier when you have a registered right to that intellectual property. Unquestionably, be sure to monitor the marketplace you operate on for any users attempting to pass off their goods as your own.

For example, it is much easier to point out someone is counterfeiting your products when you have a registered trade mark rather than an unregistered one.

Key Takeaways

It is important to look into intellectual property protections available to you when selling on an online marketplace. You will likely grant a licence to that marketplace to use your IP in return for their services. Keep an eye out for potential counterfeiters on these marketplaces as well. If you would like more information or help with your IP protection online, contact LegalVision’s eCommerce lawyers on 0800 005 570 or fill out the form on this page.