Can You Infringe Copyright Running a Marketplace?

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Table of Contents

• How Can You Violate Copyright Running a Marketplace?
• Intellectual Property and Your Marketplace Terms and Conditions
• What To Do If You Have a Dispute
• Key Takeaways

Do you run a marketplace which sells other people’s goods? If so, it’s important to understand that you can can’t use another business’ logo without permission. When running a marketplace, you want to limit your liability as much as possible, and there is a high risk that you may infringe copyright.

How Can You Violate Copyright Running a Marketplace?

Logos are an important piece of intellectual property. They’re the result of a person’s creative process and as such copyright is likely to attach to protect the work.

Marketplaces operate in many different ways, but let’s consider a marketplace where you want to keep your branding consistent. Although you allow brands to create accounts and upload logos, only you:

• Control individual listings for the sale of products;
• Have discretion as to how a brand’s logo appears on the website; and
• Control the logo positioning on the listing so that it fits in with the website.

Let’s also consider that the brand makes the following complaints:

• Use of their logo without permission; and
• Alteration of their logo without permission.

How would you deal with this dispute? We recommend a few key protections to ensure this doesn’t happen again. Let’s first look at what you can draft into your terms to avoid this type of situation.

Intellectual Property and Your Marketplace Terms and Conditions

Use of their logo without permission

Going to court is always a last resort. As such, you should include in your terms and conditions a clause that states the brand gives you an express licence to use their logo on your website. A licence means you have the right to use the intellectual property. That way, if a brand argues you have no permission, you can easily point to your terms.

Alteration of their logo without permission

When you alter someone’s intellectual property without their permission, this is called an infringement of moral rights. Moral rights are the rights to do what you want with your intellectual property. For example, if you painted artwork, moral rights allow you to:

• Frame it a different way;
• Paint over it in watercolours; or
• Cut it in half.

In your marketplace, you don’t own the moral rights in a brand’s logo. You cannot modify it so that it fits with your marketplace. It is best not to tamper with the intellectual property in this way.

What To Do If You Have a Dispute

Unfortunately, as a marketplace operator, you may still get drawn into a dispute. You should always ensure that your terms and conditions include a clear dispute resolution clause with clear steps, for example:

1. The complainant should send a written notice setting out the complaint to the relevant person (e.g. a complaints officer).
2. If the complaint escalates, the parties should agree to meet within two weeks to discuss the complaint and a solution.
3. The parties go to a mediator should the matter remained unresolved.

Key Takeaways

If you need to use another person’s intellectual property, you need express permission from that person. As a marketplace operator, you should protect yourself with clear terms and conditions that give you this permission. You should also include in the terms a clear dispute resolution clause in the case a dispute arises.

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Are you considering starting a marketplace? Have any further questions? Get in touch with our intellectual property lawyers on 1300 544 755.