ACID's latest article from the IP Doctor, Niall Head-Rapson of McDaniel & Co., covers copying & infringements

In the latest ACID IP Doctor article, Niall Head-Rapson from McDaniel & Co covers copying and infringements.

I understand that if I accuse someone of copying my work that they could sue me.  How can that happen?

Depending on what you accuse somebody of, the law allows the person accused to take action against you, for what is known as a “groundless threat”.  This can happen where there are Patents, Trade Marks and Designs involved.  There are no groundless threats for Copyright and for Passing Off.  However there are two other areas that you need to be aware of; that is interfering with somebody’s business and defamation.

If you make your statements public, such as writing to suppliers or posting things on the internet, and if those statements are wrong but it still affects the reputation of the Defendant, they can sue you for unlawful interference in their business and for defamation.

If you are going to make allegations of copying then you need to make sure that those allegations are justified.

So how can I prove that someone has copied me?

If it is somebody that you are doing business with then you should make sure that you have a paper trail.  If you have sold goods to them, for instance, then there will be invoices, order forms and e-mails.  If you are doing a pitch to somebody, make sure that you at the very least have letters and keep copies showing the accused has had access to your Designs.  You should consider using the ACID Safe Pitch Kit or at least a confidentiality agreement.  If you are sending items electronically you could also use the ACID IP Tracker.  These steps will help you prove that the accused has seen your work. It is also good practice to keep contact details for everyone that has visited your stand at a show or exhibition.

I have been accused of copying someone but it is just a coincidence.  Does this make a difference?

Well yes it does.  In order to prove a case for unregistered rights infringement there has to be proof of copying.  Similarities by themselves may not be enough.  For instance if you and I both take a photograph from the same place of the same scene we have not copied each other but the photographs will be more or less identical.  If you are creating your own Designs you need to keep evidence of how you did it.  Story boards, sketches, sources of inspiration all to show how you went from the concept to the final article without copying someone else’s work. It would be a good idea to send this information to the ACID Design Data Bank too.

How do I check to see if someone has already created a similar Design to my latest idea?

Well the obvious answer is to do an internet search which will show you what is currently available.  However, this is time consuming and not fail safe.  Unfortunately there is no central database of unregistered designs at this time.  However, with regard to Registered Designs, you could consider searching the various Intellectual Property databases at the Intellectual Property Office in the UK or at OHIM for European registrations. There are other national offices worldwide that can also be contacted – it depends how much time and energy you wish to put into market research.

All my Designs can be seen on my Website.  How do I stop the images being downloaded or copied?

These days this requires more of a practical solution than a legal answer.  All websites can now be created with ‘copy protection’ and you should discuss this with your web developer or IT support team.  If you do not have this copy protection then you should consider watermarks for your pictures and you should certainly not allow people to download without leaving their details.  If you have a website policy which includes a mandatory log in and registration system before access to your images is granted it may also help to prevent your images being downloaded without your permission.  You should clearly show a Copyright notice, the ACID intellectual property statement and the Member of ACID logo, which can have a strong deterrent effect.  Clear website terms and conditions can also act as deterrents for people who copy.

First published 2.12.11