Passing Off / Copyright

[louiboy]

Been trying to avoid this thread Intellectual property is one of my favourite topics.

 

Intellectual Property matters usually require specialist solicitors. It's a minefield of rules regulations and concepts.

 

Copyright protection is different from trademarks and patents.

 

Copyright starts at the conception of the work. It is automatic.

 

Trademarks and patents require evidence of the individuality. Lots of hoops to jump through some fee's to pay. Intellectual Property Office

 

Examples copyright:

Take a picture the image is mine I own the copyright.

Create a logo it's mine I own the copyright.

Create a painting, same as above.

 

A copyright can be protected (warned off) by adding the name of the owner and/or year of creation. The © character can be used.

 

In the pictures/images there lies the minefield. If you take an image/picture and alter/manipulate it substantially. The copyright on the new image belongs to you. It is now an original creation.

 

Trademarks:

You can create a logo and declare it a Trademark by adding the ™ quite legally. It's your to do that. When it is a registered Trademark the rules change. The copyright and patents office will examine the Trademark for uniqueness and originality. Make an assessment. If it passes assessment then it becomes a registered trademark and protected. ®

 

 

I don't think there much to worry about. If they are that concerned have they sent cease and desist notices to everyone else. One of the sites on the first pages of Google belongs to people I deal with and they get this problem from time to time. Usually a small company acting in ignorance.

 

1) Photographs. Your photographer took them, original works. Copyright automatically assigned. it doesn't matter if they are similar. Still classed as original work.

 

2) Wording similar. This only applies if your are Mr Kippling. "Makes exceedingly good cakes" Mr K has registered trademark for these words but only as the strap line for the box in relation to his baking venture. Anyone not selling cakes can use them as they see fit.

 

3) Colours. Some colours can be part of registered Trademarks. Coca Cola have the red as part of their trademark. Same as Mr Kippling Coca Cola can use the red with their black fizzy drink. Other drinks manufactures cannot. Everyone else can paint the world in a similar shade of red. Coca Cola mixed their own shade of red and have it patented.

 

If your colours are not the same rgb values, pantone colours, CMYK values as theirs. They are not the same. I believe there are over 200,000 shades of the same colour. Theres more than 1 black.

 

4) legal costs. What legal costs they have proven nothing.

 

5) Signed undertaking. What for?

 

I don't think the people who have sent the letter have fully understood the time and expense required to purse for copyright/trademark infringement.

[louiboy]

Presumably sending cease and desist notices to ANYONE using those photographs would be seen as a REQUIREMENT, and if they didn't do so, they would find it hard to justify a single instance?

Cease and desist is the copyright equivalent of a Letter Before Action. Normally it outlines the breach and what is required to remedy the breach. (default notice) and a time-scale to comply.

 

The cease and desist can be bypassed and straight to legal action. Just depends on the scale of the infringement.

 

Three main point need to be considered for Passing Off Taking Action

Reckitt & Colman Ltd v Borden Inc’ (1990)

 

I popped few of the Silver Jewellery sites open and it appears to be a standard industry practise to photograph against a white/off white back ground. Most of them have the words silver or Jewellery in the name. Several sites using the same page template for layout. Yet each was was distinctly different.

 

Passing Off requires that the visitor is fooled into believing they are elsewhere.

[louiboy]

Thanks louiboy - so the Cease and Desist letter should be sent to any website using the images, that the claimant knows about?

In theory yes. The claimant should be sending Cease and desist letters to any company/website that they feel are infringing their copyright/IP. Why single out 1 when they all use similar images.

 

I suspect your friend may be singled out for special treatment. Do they live/trade within a reasonable distance of the claimant. Otherwise, how are they effecting the claimants business?

 

The other jewellery website was based within 20 miles of a local store that took offence that their customers used the shop to view jewellery and then bought online.

[louiboy]

Hurahh! And lashings of Ginger Beer.

[louiboy]

Give em a bit of a rattling. Should encourage they to be more careful the next time.

 

I think this could turn out a good thing for your friend. Most peope are not aware of copyright and IP until it's to late. When it's to late it can be expensive.

 

The strongest route/defence for copyright/IP infringement is a Limited Company with a registered trademark.

[louiboy]

Perhaps they will have more luck suing the Argoose Catalogue. It's full of similar pictures.