Amway’s Independent Business Owner’s Intellectual Property Guide

AMWAY of Australia – IBO Intellectual Property Guide 1 Amway’s Independent Business Owner’s Intellectual Property Guide

 

What is Intellectual Property?
Intellectual Property (‘IP’) is a term used to describe intangible property resulting from creativity. IP is a broad term that includes things such as copyrights, trademarks, software, inventions, patents, trade secrets and designs.


IP plays a role in your Amway business. You may be able to copyright your own material, or
register for trademarks to protect your brand. There are a number of types of IP:

  • Copyright: The protections of a person’s original work such as music, videos, books,
    photographs, drawings etc.
  • Trademarks: This is a symbol used to identify and protect a unique brand name or logo.
  • Patents: A patent protects how an invention works or functions. At the time of writing,
    Amway has 1000 patents with 700 pending worldwide.
  • Designs: This does not protect the way an invention works, but protects the visual
    appearance.


Although Intellectual Property covers a wide range of matters, this document will focus on Copyright and Trademarks, being the two areas of IP that relate most to your Amway business.


Copyright


What is Copyright?
Copyright is the protection given to a person’s original work. It is the right given to the owner of the original works to use such work exclusively. For example; a genre of music is not protected, but the creation of an original musical melody within that genre is protected. This ‘original expression’ is determined by an originality test, where it is assessed if the author of the work put some skill and labour into the creation, and did not copy off someone else.


Copyright covers many types of material and works such as:

  • Music, audio broadcasts and sound recordings;
  • Videos and films;
  • Print material and literary work including magazines, books, and newspapers;
  • Photographs and other images, drawings, paintings or maps;
  • Originally created databases; and
  • Computer programmes.


What does the law say?
Copyright issues can be very serious. The law says that you cannot use copyrighted material without the copyright owner’s permission. Permission may be in the form of express consent from the owner, or a licence or permission provided through the relevant authorities dealing with that material. A copyright breach may result if you use material without permission or a licence.


For information as to the appropriate music licensing authorities, see below.


A breach will occur when an individual uses a ‘substantial’ part of the original work. This refers to quality and not quantity. What is looked at is whether they have used an important, distinctive or essential part of the copyright material.


In order to be compliant with the law and to protect your Amway business, it is important that you always seek permission to use someone else’s work.


Note that a breach can also happen indirectly. For example, if you sell, distribute, or import any item containing copyrighted materials, or authorise any infringement.


Obtaining a licence to use music.
To use music with your business, a licence is required. Such a licence will cover the rights of the songwriter, composer and music publisher who made and own the piece of music you want to use. It is possible to obtain a licence through the relevant authorities which will give you permission to use a specific song or musical item for your Amway business.


Within Australia and New Zealand, the relevant authority is APRA AMCOS – the Australasian
Performing Rights Association (APRA) and the Australasian Mechanical Copyright Owners’
Society (AMCOS).


APRA AMCOS can assist you in obtaining the correct licences for your business. It is a good idea to contact them directly to discuss your options at www.apraamcos.com.au or (02) 9935 7900.


How can someone protect their Copyright material?
There is no registration or application process for original works to be created. This is because an idea or concept is protected by copyright the minute it is created or documented (either on paper or electronically), rather than after it is officially published.


Contrary to popular belief, the copyright sign ‘©’ does not need to be attached to the work in order to be protected by copyright. It simply exists as a reminder that the work people are looking at is protected.


How long will Copyright be protected for?
Published material for literary, musical, or artistic works are protected or 70 years after the year of the creator’s death, or 70 years from the year a film or sound recording was broadcast. After 70 years has expired, it becomes available to use without the need for permission from the creator or owners.


If the work has not been published or broadcast within the creator’s life, or the creator of the copyright cannot be established, then the copyright will expire in 70 years on from the end of the year it was first published.


AMWAY of Australia – IBO Intellectual Property Guide 5
It is important to note that this rule of 70 years only came into effect on 1st January 2005, so any material that had expired before this date will remain expired.


What happens if I breach Copyright laws?
A copyright breach can be quite serious. As already mentioned, it is not necessary to use the whole material to constitute a breach. Using a substantial part of a copyrighted material work can amount to a breach. A substantial part does not refer to quality but rather quantity.


The owner of the copyrighted work is free to take action against the infringer in a court of law. If you are found liable, penalties include paying substantial amounts of money to the owner, and may also include covering their legal costs. An infringement can also cause significant reputation problems for your independent business and Amway.


It is important to note that the court may take into account ‘likely’ infringements, as well as clear and proved infringements themselves.


What does this mean for my Amway business?
Within your business, copyright is an important thing to keep in mind. You should ask yourself the following important questions within your business.

  • When you are using music or a live band at an event: do you have a licence to use that
    music?
  • When you are putting music to a video and posting it online: do you have a licence to
    use that music in that video?
  • When you are printing a brochure with images in it: do you have permission to use
    those images? If they are models, have those individuals consented?
  • When you are presenting a speech and you quote a book: do you have permission from
    the author to use that quote?


Online media:
If you have created an online social media profile, a website to progress your business, make sure that you have permission to use nay images, videos, or quotes that are not your own. This also includes posting any audios, or soundtracks that accompany your videos.


Business Support Materials (‘BSMs’):
When creating flyers, brochures, posters, or any other creative material to give you LOS or prospects, make sure that you have permission to use any images or quotes that are not your own.


For sound recordings, the general rules is that the person paying for the recording is the owner. This extends to other speakers on the recording, who each receive a share of the copyright.


It is important not to distribute any audio recorded or printed materials until you have been given permission from the owner, or they contain the Amway certified BSM number.

 

Using Quotes & Extracts:
The main point to remember in literary works is that infringement occurs when a ‘substantial part’ of the work has been used. This does not have to be a large part of the work, just any part that is ‘important, essential, or distinctive’.


You may find yourself quoting from a book or reading an extract from literary work in your own presentations or on training audios. If you do so, you must stop and consider if you could be in breach of copyright. The best thing to do is seel permission from the author. Simply acknowledging the source is not a valid replacement for permission.


We acknowledge that getting such permission may not always be possible. In these situations, it is a good idea to keep your referencing to a minimum – not using a substantial part of the original work.


If in doubt, please contact the Amway legal department on (02) 9854 8100.

Trademarks


What is a Trademark?
A trademark is used to identify and place ownership over an exclusive product or service. It can range from a word, letter, phrase, logo, picture, shape, an aspect of packaging, smell, sound, or any combination of these.


Registering a trademark gives the owner exclusive legal rights to use, licence, or sell the product or service within Australia using that mark. The registration is valid for ten (10) years after the filing date of registration. Beyond this date, the trademark will need to be renewed. Trademarks will not be registered if they are too similar to an existing trademark, are contrary to the law, or are at risk of being controversial.


It is a good idea to trademark any word, phrase or logo you exclusively use within your independent business. A trademark will give you brand protection and allow your business to stand out.


The difference between the ™ Symbol and the ® Symbol


The TM symbol is used to identify anything that functions as a trademark and is most commonly placed with unregistered trademarks.


The placement of this symbol next to an unregistered trademark does not mean that your trademark is registered or legally protected, although the symbol can at times be used with a registered trademark.


The R symbol is used to identify a registered trademark. This symbol can only be used for trademarks that have been registered and it is an offence to use this on an unregistered trademark.


How does this affect my business?


Business Names:
A business name only exists to identify your business, and registering a business name does not automatically give the owner any legal or proprietary rights of ownership over that name. This means that you don’t have any rights to stop someone else from using your business name until it has been trademarked. If you want to maintain exclusive use of your business name, you should ensure that you register this name as a trademark.

 

Note: you are required to actively use your trademark registered business name. Other applicants can apply to have the trademark revoked if it has not been used for over a period of three (3) years.


When deciding on a business name, it is important that relevant searches are conducted to make sure that you are not attempting to trademark an already registered trademarked name. Failure to do so could result in a Court Order to revoke the trademarked name and you could also be liable to any compensation claims.

 

Business Support Materials (‘BSMs’):
Using Amway owned trademarks – When using Amway trademarks, you must ensure that the appropriate service mark is attached to each trademark name and product. This only needs to be included the first time it is mentioned on each page. Please see below for the correct use of the Amway trademarks.

 


Using third party trademarks – As an IBO, you are personally responsible to use third party trademarks correctly. You cannot use a third party’s trademark in a way that suggests they are in some way associated with your business. In some cases, you may need to independently obtain written permission from the owner/s of the trademark you wish to use.


Social Media & Websites:
Websites and Social Media sites are considered BSMs, therefore the guidelines above for BSMs and trademarks also apply for all Amway related sites.


In addition to these rules, you must ensure that the name of your website or Social Media profile does not contain any Amway or third party registered trademark names or symbols. This can be deemed a trademark infringement.


List of Amway trademarks.

  • ARTISTRY®
  • NUTRIWAY®
    AMWAY of Australia – IBO Intellectual Property Guide 9
  • SATINQUE®
  • Amway Home®
  • XS™ Energy
  • Fuel Factor®
  • eSpring®
  • ATMOSPHERE®
  • iCook®


INTELLECTUAL PROPERTY BEST PRACTICES
The following Best Practices are intended to guide your creation and use of materials and the conduct of meetings and events in connection with your Amway business in a manner that will help you avoid infringement of intellectual property rights and also to help ensure your compliance with the applicable Rules of Conduct.


Please note, these best practices do not cover all rights and limitations relevant to your use of intellectual property materials. If you have any specific questions concerning use of copyrighted materials in connection with your Amway independent business, please consult your lawyer.


Creating and selling Business Support Materials


Quotes Unless you have explicit permission from the creator or owner of the works, you cannot use any quotes or extracts that are not your own.


Music As above, you will need permission from the creator, or the owner, of the music before using it for your
Amway business. This includes using any part of the song in any way. Such permission is usually in the form of a licence.


Images You are entitled to use any images that are your own. If you wish to use any Amway images, you will
need to ask for permission from Amway beforehand. Unless you have explicit permission from the creator or owner of the works, you cannot use any images that are not your own.


Photos If you have taken a photo or video of individuals and you wish to use that photo, you will need to get their express consent to do so. Such consent should always be in writing.


Within your business


Posters You must ensure that you have permission to use any images or quotes that are not your own.


Business Cards You are entitled to use any designs, images, logos and quotes that are your own. You must ensure that you have permission to use any designs, logos, images or quotes that are not your own. This includes any Amway trademarks.


Trademarks Amway owned trademarks – You must ensure that the appropriate service mark is attached to each trademark name and product. If you are not sure on how to use a trademark correctly, contact the Amway legal department.


Third party trademarks – Never use a third party’s trademark in a way that suggests they are affiliated with your business. Different companies have different rules and regulations regarding the use of their trademarks and logos. It is up to you to ensure that the correct logo and service mark has been used.

 

Music can be used in your business in many ways, including as background music at Amway functions, music added to a video or training audio or a song performed in public. In all cases, you need to ensure you have the appropriate licence to use that music. Generally, licences only cover specific situations, so you need to be careful to get the relevant licences for each music use.


Social Media

 

Website name/URL Make sure that the name you give your social media site, or the URL attached to it, does not contain any Amway or third party trademarks. It is a good idea to use your own business name or trademark.


Images You are entitled to use any images that are your own. If you wish to use any Amway images, you will
need to ask for permission from us beforehand.


Unless you have explicit permission from the creator or owner of the works, you cannot use any images
AMWAY of Australia – IBO Intellectual Property Guide 12 that are not your own.


Music If you are using music on a website, you will need permission from the creator, or the owner, of the
music before usage. This includes using any part of the song in any way.


Video sharing The same rule applies to uploading videos to your social media profile. Always seek permission from the creator, or the owner, before using the video.


It is important to ensure that any videos you have created don’t contain any images, quotes, music or
video clips that you do not have permission to use.


IP Do’s:

  • DO know your IP rights within your business. IP is a powerful tool when used correctly!
  • DO seek permission for any images, designs, quotes, videos, or music used that are not
    your own. You must seek permission from the owner before posting it to your site or
    using it in your Business Support Materials. Penalties for not complying with the law
    could be severe.
  • DO seek permission from us if you want to use any of Amway’s registered images,
    videos or trademarks. To ask permission, send Amway a simple email with your request
    to gillian_shaw@amway.com.
  • DO perform a thorough online search if you wish to register your trademarked business
    name. Failure to do so runs the risk of a possible trademark infringement.
  • DO have signs and reminders at events for attendees not to record (audio or video) any
    meeting without prior written authorisation. This will help reduce the risk of any
    copyright infringement. It’s also a good idea tp provide a reminder printed on the
    meeting ticket or flyer.

IP Don’ts:

  • DON’T use any Amway names or registered trademarks when naming your website. For
    example, don’t name your page “John’s Nutriway Store”.
  • DON’T use any third party names or registered trademarks when naming your site.
  • DON’T use any of your own videos or audios until it has been reviewed and authorised
    by Amway first. We can help to ensure that there are no potential legal issues.
  • DON’T use any quote or extract from any work unless you have permission from the
    owner to do so. Simply acknowledging the source is not a valid replacement for
    permission.
  • DON’T closely paraphrase another person’s work. Paraphrasing can be considered
    infringement if the structure or order of the original work is closely followed.
  • DON’T use music for your business without first obtaining the appropriate licences. If
    your music is royalty free, then you’re good to go!
  • DON’T pass off Amway’s trademarks, or any third party marks, as your own. This can
    create significant liability for you and your business.
    AMWAY of Australia – IBO Intellectual Property Guide 14

Want more information?

  • Call the Amway legal department on (02) 9854 8251.
  • Visit the following helpful websites:
    o Australian Copyright Council: www.copyright.org.au/find-an-answer/
    o APRA AMCOS Licences: www.apraamcos.com.au/
    o IP Australia: www.ipaustralia.gov.au/
  • Speak to an Intellectual Property lawyer.