After investing time, effort and money into developing your online presence, it can be infuriating to see that someone else has copied your website. As a creative professional, you often have a good idea about your site’s design, copy and overall impression. But most creatives don’t know what steps they can take to protect their work. Below, we set out how you can enforce your intellectual property (IP) rights against infringers.
Types of IP
IP rights exist in many forms. If you are the creator of the work, the IP which applies to your work will usually belong to you. Different types of IP provide the owner with various rights to their work.
|Type of Intellectual Property||What Does It Protect?||How to Protect||Examples|
|Copyright||The expression of an original idea. This includes literature, music, art, films and broadcasts.||Automatic protection exists in any original work.||Website content.|
|Trade Mark||Names, words, logos, colours, shapes, sounds, scents – or a combination of these.||Register on the Trade Mark Register or establish a reputation under common law.||Your brand’s name and logo.|
|Patent||A new, useful and inventive, or innovative, invention. This can be a device, substance, method or process.||Register on the Patent Register.||New software built specifically for your website (e.g. Amazon’s One Click Checkout).|
There are a number of avenues you can pursue against potential infringers.
Report the Infringement to the Search Engine
Search engines have platforms that allow users to report infringement. For example, Google’s page, Removing Content From Google, provides an easy process to report content that you would like removed from Google’s services. You can also submit a Legal Removal Request for content on Google that may violate the law. Although this option isn’t always effective, it is a good place to start.
Send a Letter
It is possible that the infringer is not even aware of what they are doing and a simple letter, outlining your rights may be enough to bring this to their attention, resulting in them removing the copyright material.
But if this doesn’t get you anywhere, it may be time to contact a lawyer. A lawyer will likely send an official cease and desist letter or letter of demand to the infringer, stating that they must stop using the copyrighted material or further legal action will be taken.
Even in circumstances where you believe that a letter is unlikely to resolve the situation, it is still an important first step, as it can be used as evidence down the track to demonstrate your efforts to settle the matter out of court.
Alternative Dispute Resolution (ADR)
ADR is a term used for out of court processes including mediation, arbitration and expert determination to reach a settlement to the dispute. The purpose of ADR is to help parties settle their dispute in a more efficient, private and cheaper way.
|Dispute Resolution Process||Description|
|Mediation||Mediation involves a neutral third party, the mediator, assisting the parties to reach a settlement. Parties can be represented by their lawyers or attend the mediation alone. Although the mediator is there to control the process and encourage parties to reach an agreement, they do not offer legal advice.|
|Arbitration||Arbitration is a private procedure where an arbitrator will make a binding decision based on the statements and evidence submitted by the parties.|
|Expert Determination||In this process, an independent third party, the expert, hears and makes a decision about the dispute. Expert determination can include the parties submitting formal statements and evidence.|
Last Resort – Court Proceedings
While it is always important to explore out of court settlement options, sometimes litigation can be unavoidable. If you are successful in proving that someone infringed your IP, the court may award the following orders.
|Damages||The copyright owner receives compensation for any loss suffered as a result of the infringement.|
|Account of Profits||The copyright owner receives any profits that the infringer made during the course of using the copyrighted work.|
|Delivery Up||The infringer must deliver to the owner any goods used to reproduce the copyrighted material.|
|Permanent Injunction||An order that the infringer must stop the behaviour and prevents them from undertaking any further infringing conduct without obtaining a licence from the owner.|
A court may also order the infringer to pay the other party’s legal costs. However, it’s important to know that even where a court makes an order for costs, these will not necessarily cover the full amount invested in litigating the matter.
If you believe that someone has copied your website and infringed on your intellectual property, there are steps to take to reclaim what is rightfully yours. While suing the infringer may be the first thing that comes to mind, it is important to explore more commercially viable options as a starting point. If you are unable to resolve the matter yourself, gather all your evidence and get in touch with an intellectual property specialist. You can speak with LegalVision’s IP lawyers on 1300 544 755 or by filling out the form on this page.
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