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C&D issued, urgent help required

 
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saber_cbm
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Joined: 25 Jul 2015
Posts: 2
Location: Sussex

PostPosted: Sat Jul 25, 2015 10:22 pm    Post subject: C&D issued, urgent help required Reply with quote

Hi all,

Firstly thank you to anyone who takes the time to reply to my question,

For the past 6 months I've but my heart and soul into building and developing a website. I've put everything into it, literally all my savings in the hope that it will change my families’ lives. Yesterday at 5pm (Friday 24th) we went live, and by 10pm received an email from a site that we were previously members of whom offer the same services. The email was a cease and desist written by the company owner instructing us that we have infringed on his sites content and must take it down by close of business Monday. The email contained the following.

"It has come to our attention that you run a website ******* which features materials that have been directly copied from our website. These materials have been copied verbatim in many places, and paraphrased in others, and you are now using these materials to market your services for commercial gain.

This is a violation of copyright law, and a violation of our terms of service, which you are bound by, and this is actionable at law.
Your website is also in violation of the Companies Act 2006. This Act requires that your website shows your business name, email address, geographic address, registered office address and company registration number (if applicable).

We require you to confirm, by close of business on Monday 27th July, that you will:

- immediately cease using any materials from ********, including verbatim or paraphrased written copy, images, designs, videos, bookmaker offers or strategies.

- provide a written guarantee that neither you, nor anyone involved with or affiliated with your business will use any materials copied from *****, without permission, in the future.

We request that you immediately cease all aforementioned infringing activities and that you confirm this to us by email (to this email address) no later than the date specified above. If you agree to this, we are prepared to consider this matter concluded. In the event you fail to respond and proceedings become necessary (which, to the extent lawful, may be issued and served without further notice to you), ******** reserves the right to seek all remedies available to it, including an injunction, damages and/or an account of profits, legal costs, and interest. In the meantime, ******* reserves all its rights in this matter.

We look forward to hearing from you no later than close of business on Monday 27th July 2015."

The content on our site was written from the ground up, we host no videos and all images are 100% our own. There will no doubt be similarities in the explanations we give as everything must be explained to the point and with simple, direct instruction, for example "This offer requires that you do this to achieve this, and in doing so will allow this", again I must stress that ALL our content has been written from the ground up..

We did however, sign up to a host of sites to research our competitors and analyse their strengths and weaknesses, we saw no wrongdoing in this as we believed it to be common practice.

The offers we promote and the systems we teach are freely available on countless other websites. The information and techniques we promote have been about for many years and have been available online long before the website making the c&d claim against us ever came to be.

We are deeply concerned as we are a tiny company with very limited funds as everything was invested in starting up. The threat of legal action is terrifying as the company mentioned are a very successful business since launching last year and money will most certainly not be an option should they wish to pursue as and close us down.

I have absolutely no idea how to respond to this and any help or guidance that anyone can offer would be appreciated more than words can express.

Thanks
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AndyJ
Oracle
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Joined: 29 Jan 2010
Posts: 1523

PostPosted: Sun Jul 26, 2015 7:31 am    Post subject: Reply with quote

Hi saber,

I can appreciate that you find this situation very stressful, but in the immortal words of Corporal Jones, "Don't Panic".

First of all the cease and desist letter is defective from the point of view of meeting the type of letter before action which the court would require as a pre-cursor to any litigation. It does not specify the exact elements which the company claim have been copied, for example which images or text. Secondly, the letter should offer some proof, even if only a simple assertion, that copyright in the material which they allege has been copied, actually belongs to them. I'm not clear about why the other company feels that they have a right to prevent you using "bookmaker offers or strategies" but unless they provide evidence that they hold some contractual or intellectual property right in these things, you can refute that part.

They are right that technically your site needs to contain certain information about your company. You don't say if you have incorporated your company (ie it is limited by guarantee) but even if you haven't you are still bound by the Unregistered Companies Regulations 2009, especially Schedule 1 paragraph 4, and The Company, Limited Liability Partnership and Business (Names and Trading Disclosures) Regulations 2015. However that has nothing to do with the cease and desist letter, and is something you can sort out later. For instance if you haven't yet registered yourself as a sole trader or partnership with HMRC then you may not technically be an unregistered company.

What to do next. I suggest that you reply to the C&D letter in polite terms and ask for details of exactly what parts of their site they think have been copied. You can remind them that in order to establish copyright infringement they need to show that what they allege has been copied is original and that it forms a substantial part of their copyright work. The use of short, commonly-used phrases or sentences would not be considered original if they lacked any creativity on the part of the writer (for example something like: Hurry, this offer must end soon!). Paraphrasing does not constitute an infringement of copyright if there is no other way of saying what you want to say. You can also remind them that copyright does not protect ideas or concepts, just the expression of them. If they are claiming infringement of the design of their website or any trade mark, ask them to provide you with the details of any registration with the IPO. Beyond that I would not make any commitment.

As a matter of interest if they continue to make unjustified claims or threats concerning your site, this may amount to restraint of trade and/or harassment. However that is not a matter for the present.

Only you will know the extent to which you have or have not actually copied their content, and therefore the strength of your position. The fact that you have built your site from scratch does not mean that you haven't inadvertently copied some of their more important wording. Because they can prove through your membership of their site that you had access to their content, you cannot rely of the defence of independent creation, which means that you had absolutely no prior knowledge of the things they allege you copied.

In the longer tern, if the matter cannot be resolved either by them backing down or you changing sufficient details on your site to satisfy them, without it effectively shutting down your site, suggest that you both resolve the matter through alternative dispute resolution (ADR), usually mediation. You can find details about this on the IPO website or through your local court or Citizens Advice. This will be infinitely cheaper than going to litigation and probably would not require you to engage a solicitor if you cannot afford it.

Good luck.
_________________
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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saber_cbm
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Joined: 25 Jul 2015
Posts: 2
Location: Sussex

PostPosted: Sun Jul 26, 2015 1:02 pm    Post subject: Reply with quote

Thank you so much for your reply Andy. I can say that although it isn't proper legal advice, I do feel much less worried about the situation now I've had someone who clearly has knowledge on copyright. Searching the internet for answers can really be a double edged sword and make you worry even more about stuff. I also find reassuring the point you made regarding paraphrasing because we must be entitled to give explanations to the offers we're advising on.

The site has now been updated with the company information, was an oversight on our part, this is my first ever company and there are lots of things I will need to learn quickly!

I will email them tomorrow requesting the details you advised and try to get the matter resolved.

Thank you again for your time Andy and as a small token of gratitude I would like to offer you free membership to my website. No card details or anything, just pm me on here and I'll get it set up. I can't stress enough how much I believe in the product Very Happy
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