Some of our online images and logos have been lifted directly from the site and are being used by an independent retailer without our permission. How can we stop this from happening?
Unfortunately, it is almost impossible to physically protect online content, says Craig Blakemore, partner in the commercial dispute resolution team at Weightmans LLP. Images and text – in fact entire websites –can be copied and replicated by unscrupulous competitors.
Before you can decide how to proceed, Blakemore says you need to consider three factors. The first is who owns the intellectual property rights (IPR) in the images? If your employees took the photographs in-house then you own them, but if you used an outside agency then you need to check your contract with the agency. Unless the contract expressly assigned the IPR to you, you may only be a licensee, not the owner. You may still be able to take action, but your legal position will need to be checked before you proceed.
Can you prove the origin and date of creation of the images? How will you prove that you or your agency took the photographs, and when they were taken? Thirdly, did you register the name of your business or your logo as trademarks?
Both may be capable of protection. Did you register ‘design rights’ to protect your product designs?
“If you believe your IPR have been infringed you may be able to bring an action for damages and obtain an injunction to restrain the infringement,” says Blakemore. “Even if you have not registered a trademark, you may be able to bring a claim for ‘passing-off’ if the competitor is using your images or logo to confuse people into thinking their business is in fact the same as your business.”
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