Australia: Buyer Beware – All creative care and no responsibility – website development
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Doing business in the 21st century means having some
kind of online presence. Many businesses seek specialist help to
create and design websites, mobile applications and increase their
presence on various social media platforms. Many of the creative
agencies and software companies available are excellent operators
but (like any agreement) you must read the fine print when entering
that relationship.
Increasingly, companies are looking to offer integrated
assistance with specialties like brand strategy as part of their
otherwise core business of, for example, web development. From a
client perspective, that seems sensible and efficient in achieving
an outcome that aligns to your brand and delivers the intended
outcomes without engaging and juggling multiple suppliers.
However, in our experience, those kinds of ‘allied
services’ may be delivered without consideration as to what is
really required. Let’s take for example, a new build of a
website with a web developer. The web developer offers to help you
with brand strategy which is not their core business. If they start
talking about mood boards and brands that you like in the market
without any discussion of available domains and trade mark rights,
alarm bells should ring for you to check the terms and conditions
on which they offer the service.
What the developer should be doing is working from the
perspective that what is to be created must be able to be owned by
you and sold or licensed if your aim is to commercialise the
site.
Anyone who has watched Shark Tank will know that ownership of
the IP in a business is often critical to commercial success.
Conversely, one of the easiest ways to be perceived to be ‘ripping off’ someone else’s branding is to create a
paper trail demonstrating that you intended to leverage an
identifiable, existing brand which would arise through say a mood
board.
Often the supplier will have terms and conditions that you
considered initially in light of web development service that
nonetheless would see it avoid liability entirely for any risk on
the brand strategy as well. So while they help you devise and
settle on a brand, if no analysis of the IP arising in that brand
is conducted, it may well infringe third party rights and you will
have little recourse against the supplier contractually should you
receive a claim for IP infringement after launching your new
website.
The best thing to do to avoid this scenario is to have your
legal team assist you with the agreement for supply at the outset
and attempt to insert some responsibility by the supplier for the
allied service i.e brand service it delivers. Ultimately, the best
course is to have your own IP expert assist you while you are
considering the branding so that you can make an informed choice at
the time and avoid potential costs of development that reflects a
brand strategy that may expose your business to risk/s.
We regularly assist businesses in this position to understand
the existing IP landscape and avoid the potential for third party
claims in new products and services. We also work with agencies /
developers to help narrow the choices to be put forward to their
client.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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