LEGALLY SPEAKING - Paul Sugden

"Names numbers and the whole internet issue for the textile creative"

The ownership of names and the concept of domain names

The Internet is a creative person's leisure paradise. Yet it began life as a mathematician's excuse for communicating using numbers. The digital age has meant that all expression can be translated into ones and zeros and programming language or, to put it in more basic terms, as switches for "on and off" in electrical impulses that allow everybody and anything to be transmitted from here to China and back via Timbuktu. As the cartoon character Buzz Lightyear says: "To infinity, and beyond!!!"

Being a textile creative though, there is a great desire to say this is for someone else. The creative world for textiles has a tendency to sneer at ones and zeros, perceiving them as the death of creativity, with the Internet and digital age considered a communication and transmission tool at best, to assist the creative process. The cynics say it's here so let's learn about some of the intricacies.

For this series of articles I hope to explore a few of the intricacies of the what's, when's and how's of some legal issues for a textile creative. The first topic is looking at the ownership of names and the concept of domain names.

Names are really tricky issues. Consider the actors who have called their child 'Apple' after a computer which was named for a piece of fruit!! Such names in their context, for both the child and the computer company are unique. Unique names obtain the best protection as registered trade marks (Trade Marks Act 1995) - for the goods and services that a person wants to sell under them - for example, Apple for computers.

Having a trade-markable unique name for a business, whether small or large gives a wonderful advantage in that in the arena of your Internet domain, a unique name that is trade-marked or is strong enough to be trade-markable means you can stop others using your name as a domain name. This can be important, as in the world of domain names where they have used mathematical certainty (in that each address equates to a number). 130.194.11.4 is the Monash website (you could type this number in, or use letters www.monash.edu.au).

This absolute issue in numbers does not translate well to the real world, as we use names rather than umbers. I have found out there is another Paul Sugden living 20kms away (this was brought home to me when the local chemist said, "You're not the Paul Sugden I was expecting!"). The other Paul Sugden had dated our local chemist, the nurse at the local doctor's surgery and a lot of other people in the local area, and bragged there would only be one Paul Sugden! - But only one of us could claim paulsugden.com in the digital world.

For this reason other categories have been introduced such as .name (person names) .org (non profit organisations) .pro (professionals) .biz (for businesses) .com (businesses etc) so we can differentiate who we are in the digital world. In addition country codes have been added such as .au for Australia and .tv for Tuvalu. This has increased the number of people who could claim the rights to a name, but even so, there are still more people with the name Julia Roberts as a combination than the internet will allow to register juliaroberts.com, even with country code alternatives.

Yet having a unique name helps - or being really famous - the media has picked up on artists such as Madonna and Celine Dion, Mick Jagger, Paul MCartney and Jeanette Winterson who have all used the Uniform Dispute Resolution Policy to obtain a mediated transfer of their domain names in the .com category. These advantages came from the individuals' fame, not the uniqueness of the names - for example, Julia Roberts is a popular and fairly common name.

So what lessons are here for a textile creative to learn? If your name on its own is unique and you are famous then you can obtain a domain name using your own name and prevent others using it, just like Madonna has done. What about the rest of us, however, with another person out there with our name? In the digital world we have to use the smarts of trade-marking to sell our textiles and creations under unique invented names. The basic rules of creating these names is that the name can not be:

• A geographic name, particularly common ones, eg Brizvegas may work but not Brisbane; another example could be Waterford. Some unusual Aboriginal names such as Aginbilly may work however, as they are really unusual and little known.
• A common surname eg Smith Jones Chen Lee etc where there are more than 10 in the local phone book - just not on (so Sugden is out!!!)
• Descriptive of the material or the work done; eg hemp for hemp materials or hemp clothing: wool or Oralwooolah for wool products, or designs for designs, or textiles or fibre for a textile maker. (These words are fine for business names or company names which give no rights of ownership to the name but are not good for the trade mark).

Spend some time inventing an innovative name and the law gives the ability to protect, whereas descriptive names are worthless as was seen in a fight between two flower companies who had the domain names sydneyflowermarket.com and a competitor who had sydneyflowermarket.com.au. In this fight the judge said both were descriptive and so each had to put a notice on their website saying they were not the other website and to click here if the customer wanted the other group.Now isn't that a waste of your advertising dollars and creative skill?

So to infinity and beyond.be as creative with your names as you are with your fibres!!!