In Short
- Copying another website’s design can lead to legal consequences, including trade mark and copyright infringement.
- Protect your website’s original content by registering trade marks and relying on copyright laws.
- If your website is copied, address the issue promptly, potentially taking legal action if necessary.
Tips for Businesses
Always create unique content for your website to avoid legal risks. Register trade marks for key assets like logos and names. Use copyright protection for original text, images, and videos. If you spot infringement, act quickly—start by asking the other party to stop before pursuing legal measures.
A business having a website has become so commonplace that it is increasingly rare to find a business without one. Curating a useful website for your customers is often crucial when marketing yourself for success. Using existing websites and material from social media platforms to model your new site can be tempting. If doing so, you must ensure that you are not infringing on another business’s intellectual property (IP) rights and creating a cloned website. This article covers practical steps to protect your website from copying and how to avoid copying another website’s designs.
Your business’ brand represents your values, identity and reputation. Learn how to create a successful brand and protect it.
Intellectual Property in a Website
Websites contain various elements that different intellectual property (IP) rights can protect. IP refers to creations of the mind and can exist in many forms. There are two main IP rights types: registrable and automatic.
A website may contain different types of IP, such as:
- trade marks;
- copyright;
- design rights; and
- patents.
While many web designs may share similar structural elements, your specific content and features can be unique. For example, copyright can protect a custom-created mascot that guides customers through checkout and may also serve as a trade mark.
It is important to consider how to protect your website’s various forms of IP. In the above example, copyright in your custom-created mascot will arise automatically. On the other hand, if you wish to protect the mascot as your trade mark, you must register the mascot as your trade mark to obtain full protection.
Understanding your website’s different types of IP can help you develop a comprehensive strategy to protect your creative assets.
Registrable Rights
A registrable right is an IP right that can be registered with IP Australia. IP Australia is the government agency that manages all IP applications and registers. Typically, on a website, a trade mark is the most common form of a registered right.
A trade mark can include a registered:
- business name;
- logo, slogan;
- a sound; or
- colour.
The ® symbol identifies a registered trade mark. However, not all trade marks include this symbol. Simply registering your business name through ASIC or registering an ABN does not provide you with registered IP rights for your business name. You will need to register it as a trade mark specifically.
If someone copies your trade mark without your consent or you copy their trade mark from a website without consent, this is trade mark infringement.
If you copy someone else’s website, you run the risk that you may infringe their trade mark and face a potential court claim. You should not copy any parts of another website design and ensure that your entire website only contains your unique content.
IP Australia does not ‘police’ trade mark infringement. Instead, it is up to you to enforce your registered rights.It is important to note that trade mark protection is territorial. If you are operating internationally, you may need to register your trade mark in multiple jurisdictions to ensure comprehensive international protection.
Continue reading this article below the formAutomatic Rights
An automatic right is one that you do not need to register; instead, it protects your work as soon as you create it. Within a website, the most common form of IP is copyright. This is also an automatic right.
Copyright material on your website can include:
- written content such as information about your business, blog posts and articles;
- the source code of the website; and
- visual elements such as images, artwork or animations.
The benefit of an automatic right such as copyright is that the creator benefits from exclusive rights to use the work however they wish.
If you copy elements from another website, not only do you risk infringing their trade mark, but you also run the risk of infringing their copyright. Copying and republishing parts of a website without the copyright owner’s permission will generally constitute copyright infringement. These can be costly, so it is best to create unique content instead of copying others.
If you find that another person has infringed the copyright on your website, you can take the same approach as a trade mark infringement. First, you can politely request that they cease using your copyrighted material. If they are unwilling to comply, you may need to consider further legal action.
“Fair Dealing” Exceptions
It is important to know the “fair dealing” exceptions under Australian copyright law. These allow limited use of copyrighted material without permission for purposes such as:
- research and study;
- review and criticism;
- parody and satire;
- enabling a person with a disability to access the material;
- reporting the news; and
- giving professional legal advice or during judicial proceedings.
However, these exceptions are narrow and specific and should not be considered carefully. Generally, you must correctly attribute the copyrighted material to the relevant author to fall within “fair dealing”.
Passing Off
In addition to IP, as a website owner, you should ensure that you are not attempting to pass off your goods or services as those of another business. Passing off occurs when one party has earned extensive goodwill and brand reputation, and another party attempts to exploit it.
Importantly, passing off applies to commercial actions that must intend to damage the reputation of an existing business. In the context of a website, passing off can occur when a new website is so similar to an existing website that it may mislead customers into thinking that the products they purchase are those of the other business. Even if there are different details on the website, like the business name, passing off can still occur.
If you collaborate with another business, you must take steps to make the nature of this collaboration clear to your customers. If you exaggerate the extent of the collaboration on your website or develop one that is too similar to that of your collaborator, this may count as passing off.
Protecting Your Website
It can seem difficult to protect your website from unauthorised copying. There are some more technical options, such as embedding restrictions preventing visitors from being able to save content or pictures. You may also consider hiding some of your source code or functionality if it is unique to your website.
Although copyright protection is automatic, you may consider inserting a copyright notice on your website to discourage unauthorised copying. A copyright notice can be as simple as “COPYRIGHT 2020 [insert copyright holder details]”.
A broader IP protection strategy may also include monitoring trade marks to ensure that websites are not infringing on your registered rights. Keeping an eye on competitors is also useful so that you are updated if they amend their websites. This way, you can easily check whether their websites contain any of your registered or copyrighted IPs.
Social Media Integration
When integrating social media into your website, be aware of the terms of service of these platforms. Ensure you have the right to use any content you embed or share from social media sites.
Remember, even if a social media platform’s tools allow you to embed or share content easily, this does not necessarily mean you have the legal right to use that content for all purposes on your website. When in doubt, always seek permission from the original creator and consult the platform’s terms of service.
What if You Discover That Someone Has Copied Your Website?
If you become aware that your website has been copied, you may wish to contact the alleged ‘copier’ and request them to remove the content. Another approach may be to send a legal letter outlining the infringement and requesting them to remove the infringing content.
Often, a combination of these approaches is sufficient to resolve the issue.
However, sometimes, a ‘copier’ may not be forthcoming. In these instances, seeking legal advice on your position and whether proceeding with legal action is the correct approach for you and your business is important.
In cross-border situations, enforcement can be more complex. The jurisdiction where you can take legal action may depend on factors such as where the infringement occurred and where the infringer is based.
Key Takeaways
Holding IP rights allows you to enforce these rights if they are exploited without your consent. Many different forms of IP may be included on websites, and you must protect them through various means. If you copy another website, you may infringe a range of rights, and the IP rights holders may pursue you for compensation.
If you are concerned that someone has copied your website or are unsure how to protect your IP rights, our experienced intellectual property lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
If you have been accused of copying another website, the first step is to understand the basis of the claim. You need to consider:
+ what exactly the other party is claiming you have copied; and
+ whether they have any rights to the ‘copied’ material.
For example, they may claim that you are infringing their trade mark when this mark may not even be registered.
It is essential to understand the basis of the claim before responding or taking any particular action. Getting legal advice early is your best option to protect yourself and your business.
No, you generally cannot use images you find through a Google search on your website without permission. Images found on Google are often protected by copyright, and using them without authorisation could lead to copyright infringement.
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