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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. It can be tempting to want to use existing websites to model your design. If doing so, you need to ensure that you are not infringing on the intellectual property (IP) rights of another business. This article will discuss how you can take practical steps to protect your website from being copied and what you need to know to ensure you do not copy another business’ website.

What Can a Website Contain?

Websites contain plenty of content, including:

  • your business logo;
  • information about your business;
  • articles;
  • reviews;
  • art;
  • images; and
  • animations.

A component that is less common to think about is also the underlying source code contained within your website.

Different websites can contain a lot of content that is similar, like the layout of text or information. Websites can also contain unique content, like any photographs you own that you have placed on the site. 

Your website might also contain content specifically created for your website. 

For example, a media company may have created a video for your website that shows your customers through your offices. Alternatively, your developer may have created a mascot for your website that navigates your customers through the checkout.

Although many websites may contain the same structural elements, your content is unique. It is necessary to consider how you can and should protect your website.

Intellectual Property in a Website

Intellectual property (IP) is something you create and can exist in many different forms. There are two types of IP, the first being a registrable right, and the second being an automatic right. 

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, the most common form of a registered right is a trade mark.

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 specifically register it as a trade mark.

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 and ensure that your website only contains your unique content.

If someone infringes your trade mark, you can advise them of the infringement and request they cease using the mark. You can also consider the damage the infringement has caused your business. If you come across a trade mark infringement on another website, we suggest that you get in touch with our intellectual property team to discuss the most appropriate approach for you.

IP Australia does not ‘police’ trade mark infringement. Instead, it is up to you to enforce your registered rights.

Automatic Rights

An automatic right is one which you do not need to register and instead protects your work as soon as you created it. Within a website, the most common form of IP is copyright. This is also an automatic right.

Copyright can include: 

  • authored works;
  • blog posts;
  • articles;
  • art;
  • photographs; or 
  • Illustrations.

The benefit of an automatic right such as copyright is that the creator benefits from exclusive rights to use the work however they wish. 

For example, to attract a bigger audience to your website, you might begin publishing a weekly newsletter. Any content within this newsletter is automatically protected by copyright. If someone else uses your newsletter content without reference to you, or without your permission, you may be able to pursue them for copyright infringement.

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 permission of the copyright owner will generally constitute copyright infringement. These can be costly consequences, so it is best to create your own 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.

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.

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 are purchasing are those of the other business. Even if there are different details on the website, like the business name, passing off can still occur. 

Protecting Your Website

It can seem like a difficult exercise 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.

Practically, 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]”. 

For any registered right, you should apply the appropriate symbol to indicate if it is registered. For trade marks, the correct symbol to identify a registered mark is ® whereas, (™) does not have any particular legal meaning.

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 IP.

What if You Find Your Website Has Been Copied?

If you become aware that your website has been copied, you may wish to reach out to 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, it is important to seek legal advice on your position, and whether proceeding with legal action is the correct approach for you and your business.

What if Someone Accuses You of Copying?

If you have been accused of copying another website, a first step is to understand the basis of the claim. You need to consider:

  • what exactly the other party is claiming you have copies of; 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.

Key Takeaways

Holding IP rights allows you to enforce these rights if they are exploited without your consent. There are many different forms of IP which may be included on websites, and it is important that you protect them through a variety of means. Ultimately, if you copy another website, you may be infringing 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 if you are unsure about how to protect your IP rights, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page. 

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