How to protect copyright

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People will try to copy your website, ideas, branding, products – that is a fact of life. However, it may be easier to stop copycat rip offs than you think. We set out below some tips for you to consider.

Preventing copy cats

We tell you the quick, decisive steps to take. Often, a solution can be obtained via a stiff letter with threats.  A good outcome as costs are contained. At the other end of the spectrum, where the commercials demand, we obtain an injunction. An injunction is quick and immediately prohibits the infringer using owner’s IP, pending a full trial. It may also require the infringer to temporarily cease trading.

Copyright infringement

Copyright law protects creative work which covers more than you may think as summarised below. In the UK there is no legal requirement for copyright to be registered. But you have to show that your work is original and the idea was yours.

Copyright can protect:

  • Text / Literature;
  • Designs / Graphics / Images;
  • Website Layout;
  • Music;
  • Broadcasts;
  • Software.

Website protection

The Uniform Rapid Suspension System (URS) and Uniform Domain Dispute Resolution Policy (UDRP) enables a trade mark owner to bring a claim that temporarily suspends or transfers a domain name. It is a method of trademark protection.

The Uniform Rapid Suspension System & Uniform Domain Dispute Resolution Policy

The following two processes enable you to either suspend or transfer the disputed domain. The:

  • URS offers a quick remedy if you own a registered trade mark, and discover you are the victim of cybersquatting.
  • UDRP can transfer a domain name to the registered trademark owner. This is a means of trademark protection.

Trade mark relationship with website and domain names

The URS requires the trade mark owner to demonstrate the disputed domain:

  1. Is identical or confusingly similar to a trade mark;
  2. Owner has no legitimate interest in the disputed domain; and
  3. Was registered in bad faith.

The UDRP has a similar test. However, the UDRP test applies to any trade mark, and is not restricted to an identical or confusingly similar trademark.

Domain name valuation

However, there is no legal remedy if your desired domain name was already registered before you register the domain name. Your only option is to purchase the domain.

There are no rules. A domain name’s valuation is determined by the buyer and seller.  Your valuation could depend on:

  • The seller’s profile;
  • Domain usage;
  • Ownership term;
  • Ownership history; and
  • Registration.

Passing off

The law has now been clarified.  Registering a copy cat domain name, i.e. a name similar to a competitor’s,  is  an infringement of IP. This is passing off,  which is a well-established illegal act.

Passing off is the term for taking advantage of the goodwill, brand, reputation of another business. It gives rise to a damages claim.

Remedies for passing off

So, if someone registers a domain name that infringes your trade mark,  in a way that confuses the general public,  then remedies under a passing off action include:

  • Interim injunctions.
  • Search and seizure orders.
  • Damages.
  • Account of profits.
  • Delivery up or destruction of the domain names.

How to prevent passing off

  1. File a complaint with the Internet Corporation for Assigned Names & Numbers (‘ICANN’). ICANN is a non profit organisation responsible for IP address allocation and domain system management.
  2. Make a claim at the Intellectual Property and Enterprise Court (“IPEC”) for infringement of the domain name.

Defending allegations of abuse or passing off

You may face IP infringement claims if:

  • You register a domain name likely to confuse the public; and
  • The domain name could potentially damage another company’s goodwill.

We recommend you review competitors’ domain names before registering your domain name.

Relationship of passing off with the common law

Under UK intellectual property law, the domain name registration can be a misrepresentation to the public.  The person who registers the infringing domain name:

  • Could be misrepresenting their association with the name’s goodwill;
  • Can be liable for passing off.

The passing off occurs when the domain name appears on the public Whois register. The court does not look into planned use arguments.

Copycat – recent successes

We enable clients to exploit and protect their websites IP. The field is fast moving. We are practical IP internet specialists. We keep up-to-date. We tell you what can be done cost-effectively. Most likely, we have already resolved an issue similar to yours. Our track record includes:

  • Black hat SEO – Action against a coffee distribution company’s marketing agency who used “black hat” SEO techniques. The agency breached our client’s agreement and instructions.  Black hat SEO aims to raise a page’s position in a search engine’s results page. It uses techniques that violate the search engines’ terms of service. Search engine providers are increasingly skilled at spotting “black hat” techniques, and when discovered, often downgrade the website.
  • Social media comments – Interim injunction for a recruitment company. A group of employees were publishing detrimental and derogatory comments on social media platforms about the company’s senior managers.
  • Cybersquatting – Winding-up cybersquatting company and disqualification of directors. Following a substantial investigation, we went behind the company’s corporate veil and took action against the individual directors. We proved the cybersquatting company had been set up for the purposes of a sham or facade.
  • Domain name – Acquisition of a domain name for a property investment company. This increased the business’s profile and expanded its target market.  We also advised on database protection for the property investment portfolio.

We stay current with your business needs. This ensures we are available to advise on intellectual property issues related to website and the internet.  The relevant law is  developing. Increasingly courts see domain names as enforceable intellectual property rights.  When your business or its reputation is diminished through internet infringement you are not alone. We tell you how to limit the damage.

Copyright law is a fast moving sector in this digital age.  Our aim is to preserve copyright to enhance revenue.  We review how to minimise the risk of unauthorised copying. If you are wrongly accused of copyright infringement we will defend you.

 

Copyright and contractors

The assumption is that copyright is owned by the contractors.  In our experience it is only when there is a transaction that the issue of ownership of copyright emerges.  Often sales are held up whilst negotiations commence.  The fall out is usually cash settlements have to be made to the copyright creators for assignment of copyright so that complete title can be given.  The problems are particularly acute in the software and technology industries.

Exception to the copyright ownership rule

An exception to the rule that the creator is the owner of copyright is where there are works created by employees.  Copyright created at work is usually owned by the employer if it was created during the normal course of employment. The benefit of good employment documentation to you is that the scope for employees to claim copyright was created outside of employment is removed.

Proving you own the copyright

Creators should mark their work with a copyright notice. This is the copyright symbol © followed by their name and the year.

Best practice is to keep the draft documents you used to create the final work. This documentation helps the creator should someone else claim copyright by virtue of creation.

Sale of copyright

The usual ways of selling copyright are:

  • Licence the use of copyright; or
  • Assign the full ownership of copyright.

Licence of copyright

We draft and review licence agreements to ensure that copyright ownership returns to you upon expiry.  Having licenced the copyright, issues of infringement do arise which we resolve.  For example, it is not unknown for licensees to refuse to stop using the copyright after the licence has expired or over step permitted usage.

Assignment of copyright

If you want to transfer copyright absolutely to a third party you need a deed of assignment rather than a licence.  The chances are that you do not want the responsibility of being connected with the copyright post assignment. To avoid this risk you will need to include in the assignment an exclusion of your liability.