Website and Product/Design Copyright Infringement

If you are worried about infringement or your work has been copied and you want to take action.
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BethAH
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Website and Product/Design Copyright Infringement

Post by BethAH » Sat Aug 19, 2017 11:26 pm

Hi, really not sure where I stand re. a particular situation and I'm hoping someone here can help me.

I recently started a new business, selling on Amazon in the US for now(I'm in UK). I did a course, and was advised to get my first product up and running asap and establish it sells before spending too much money on it or getting too bogged down in admin(registering copyright).

I went against their advice inasmuch as because my first product was differentiated by how it looks, I decided to make it as best I could from the outset to give it the best chance of succeeding and spent some money on getting some great designs put together by a professional textiles designer. I used a well-known freelancer platform in the US and the communications that took place at the time are all on the freelancer platform in my account (not sure if this carries any weight). This was in September 2016: I paid for 3 designs/patterns to go on a fabric product (not clothing).

I actually ended up writing all the copy for my website and for my listing on Amazon myself. So for that I don't really have proof that it's my work. I spent a lot of time on it and I published the website in April and listed my product on Amazon in May.

In June, just before selling out, I realised that another seller had used, word-for-word, my copy, just replacing the odd word where it wasn't appropriate - e.g. they have used a different type of cotton. I contacted Amazon to ask them to request the other seller to change their copy, and I kept getting a standard form to fill in. I kept returning it and I kept getting it sent back. I worked out that they were asking for a number, although it wasn't v. clear. I decided I should make sure that my product was going to sell again after being out of stock for 7 weeks, so I thought I'd wait.

My product is due to be back in stock any day. Doing some last-minute checks yesterday, I realised to my horror that the same seller who had used my copy - he has several products and has now used my copy for many of his listings - has now almost copied one of my designs for the actual product I'm selling - same 2 colours used, same overall look, same spacing. They have made slight changes to their design - they are animal designs so they've changed the legs and tails slightly but it really looks identical to mine. As they also have the same copy, to me it's clear they have been looking at my work.

I'm really not sure if I've blown it because I have exposed my designs and not registered my designs or my website/copy straightaway. I'm not sure if it's copyright or design rights that I need, if they are the same, and really what my options are, whether I need to register it with IPO or if somewhere else is okay, or if it's too late. Sorry, this is longer than I intended it to be. If my patterns are of, say, dogs, clearly I haven't got the copyright on dogs but could anyone explain how it works?
Any help would be greatly appreciated.

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AndyJ
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Post by AndyJ » Sun Aug 20, 2017 9:07 am

Hi Beth,

Lots to unpick here, but thanks for all the detail. I'm not going to go into the actual ownership of the designs as it's not clear from your posting exactly what you created and what was supplied by the person you commissioned; for the purpose of outling your options I'm assuming that you own all the rights, although there could be an issue over this further down the line, if you were ever to take the matter to court.

Let's start with the copy. You automatically own the copyright in what you wrote - no need to register as you are in the UK. You can use a straightforward DMCA takedown notice to get Amazon to remove the other person's infringing copy of your written work. Amazon have an automated system for doing this which I suspect you may have already encountered. Apart from making a statement that you own the copyright in the text, there's no need at this stage for any actual proof. The difficult part comes if the other person challenges your takedown notice. If they are based outside the UK then your only real option is to sue them in their own jurisdiction: this is not something I would recommend as it would be costly and a great deal of hassle. You therefore need to assess how important this infringement of your text is to you. Looked at objectively, it probably isn't that damaging to your business, when compared to the copying of your designs.

So let's look at your designs. These can protected by both copyright (as artistic works) and by design right. Designs can be registered or unregistered, but even this offers limited protection if the alleged infringer is based in the USA where design right is not recognised. And if the other person is based in the far East, such as China, any registration in the UK would have also have been of limited value. The difference between the two sorts of IP right is that copyright protects the design document itself and under UK law this would also cover 3 dimensional versions (ie the acutal product) made from the design drawings provided the latter were sufficiently detailed (see section 17(3) of the Copyright Designs and Patents Act 1988). For example if the design document was just a technical or line drawing without colours or sufficient detail to define the contours, it might not be sufficiently close to the finished article to mean that copyright infringement is obvious and therefore easy to prove. Design right gets around this problem by protecting the finished product itself. If the design has been registered this creates strong protection similar to a monopoly - that is to say the other person cannot evade liability by saying they created their design independently. Unregistered design right is weaker in that it does not cover certain aspects such as surface decoration (colour schemes or patterns) and it does allow a partial defence of innocent infringement. The remedy available if the alleged infringer claims that he did not knowingly copy your design would be limited to an injunction preventing any further sales in the jurisdiction covered by the court hearing the dispute. You can't use the DMCA takedown system for alleged infringement of design right.

So as with copyright, much depends on where the other person is based. If it's outside the EU, you face considerable cost and hassle in going to court in their jurisdiction, and other forms of alternative dispute resolution are not available. If the other person is based in China, it would be worth contacting the IPO as they have a representative in the British Embassy in Beijing who can take up IP disputes without necessarily involving the Chinese courts.

So your options are limited I'm afraid. Although I appreciate that this is a major issue for you as you are just starting out in business, you need to make sure you do not expend too much time and resources on a crusade which may yield very little, if any, financial compensation even if you are successful. Pragmatically you may just have to treat this other person as a competitor (like Coke vs Pepsi) and work harder on your marketing or the quality of your product as ways of beating them in the marketplace.

And I would advise you to contact ACID for further advice and support.
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

BethAH
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Post by BethAH » Mon Aug 21, 2017 9:07 am

Thank you so much for such a comprehensive and quick reply. I'm going to need to read it over a few more times but this helps enormously. Thanks for being so generous with your time.

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