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My partner recently started trying to sell her crafts through Facebook and through a website (that i am in charge of), she hasn't sold much but it has only being going a month, so we weren't expecting anything spectacular!

A few days ago an 'internet celebrity' posted a picture of her daughter wearing one of our items (because we had sent her one as a gift) and we have been getting a lot more interest (cannot complain), but as a result of this we received an email from a vaguely similarly named website asking us to stop selling immediately as it would be 'diluting' their brand and they were 'registered', but i cannot find any proof of this apart from a flashy website with their name 'copyrighted' (i didn't think you could copyright a name usually).

This has worried us and now we are having to look at trademarking and registering, all very expensive! (compared with the minimal income), we would obviously register with the 'Tax Man' but i think we have up to 3 months from starting to sell (and i wanted to see if this business was viable).

Please could i have some advice on what legally we need to do to prevent us from getting into 'hot water' as we are an honest couple just trying to make something out of nothing, and hopefully enjoy the journey!

Thank you in advance.

Andy

P.S. we are based in England.

  • You can search the Intellectual Property Office's trade marks database online to check if you might be infringing. – Flup Jun 29 '15 at 16:28
  • I tried this earlier and there are no trademarks matching the name of the company contacting us, am i missing something? – Andy Jun 29 '15 at 17:08
  • A name is protected by a "trademark" not by copyright. If they cannot get that right it suggests they are not very serious – Calchas Jul 3 '15 at 15:39
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I speak from the perspective of Australian law - the general thrust should be the same but the nuances will be different.

There are several different ways that intellectual property (IP) is protected, I quote from Australian Business Law, CCH Australia Ltd (my emphasis):

Sales literature, software and promotional film about the product may be protected using copyright; its shape or pattern may be registered using a design; its invention may be patented; its name may be registered as a trade mark; and confidential information about it may be protected by action for breach of confidential information.

Copyright exists in "works" (ie original literary, dramatic , musical or artistic works) and "other than works" (ie sound recordings, cinematograph films, television and sound broadcasts and published editions of works). As you say, a single word or even a short phrase cannot be protected by copyright but an artistic work like a logo incorporating words can, however, in that case it is only the logo that is protected, not the words within it.

They have no copyright in their name

Single words and other things (eg Cadbury's trademark of a specific shade or purple) can be protected by a trade mark. However, unlike copyright which automatically springs into existence upon creation, a trade mark must be registered in the relevant jurisdiction (the UK in your case); a US or Australian trade mark, for example does not prevent anyone dealing with it in the UK. In addition, trade marks are limited to a particular field - if Microsoft is a registered trademark limited to the field of computing (and I'm not saying it is or isn't); if you were to apply the word to your range of feather beds there would be no trade mark protection.

Trade marks are publicly registered; look it up.

If they do not have a trade mark then they cannot take action against you.

Registering a trade mark is complex and can fall over for a number of reasons. First, it has to be capable of "distinguishing the product" - if the word(s) you are using are not made up and given that there are at least 2 products in the market similarly described (yours and theirs) then it is probably not trade markable.

My advice - do nothing unless and until you get something more serious than a letter. If you have breached their rights then they need to prove it; which means issuing you with a summons. If and when you get that (and you probably won't) you can a) roll-over or b) fight.

Worst case scenario is they can seek an injunction on you to stop - if they head this way you can just ... agree to stop before going to court. Theoretically they could also sue you for the damage you have caused their brand which is ... two-tenths of bugger-all.

That said, I am not a lawyer, not familiar with the jurisdiction and not appraised of your specific details; pay some real money to a real solicitor.

  • Dale, thank you for your detailed answer, I think the fact that this came to us in an email shows how serious they were! By searching every official site that I can find, I cannot find any form of trademark for the opposing company, and our logos are different (our names sound similar when said out loud) so we cannot be infringing on copyright that way. Thanks for the peace of mind - I will seek the help of a solicitor of things get any more serious. – Andy Jun 30 '15 at 8:31

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