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Ask Ash Your Own Question

Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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Hi, I have a small sole trader company which developed a

Customer Question

Hi,

I have a small sole trader company which developed a software booking system with a developer, which took 3 yrs in the making. We have subsequently lost our niche market to a competitor. They have approached the developer and asked for the exact same system which they have now been provided. I would like to know where I stand on IP rights and if I have any recourse?
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.

Alex Watts :

Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.

Alex Watts :

Did you have any form of contract with the development company please?

JACUSTOMER-apnb7zgt- :

Hi,

JACUSTOMER-apnb7zgt- :

yes i did sign a contract with the said company

JACUSTOMER-apnb7zgt- :

and believe some of the terms provide them with full copyright

JACUSTOMER-apnb7zgt- :

however there are other terms such as:

JACUSTOMER-apnb7zgt- :

'You also own text contant, photographs and other date provided, unless someone else owns them

Alex Watts :

What about the data or the software?

JACUSTOMER-apnb7zgt- :

thats covered in their very small print which is hardly visible,

Alex Watts :

What does it say?

JACUSTOMER-apnb7zgt- :

unless otherwise stated on completion and settlement of all agreed fees copyright of design; and text; and images; and animation; and film; and programming; and scripting; and database design is owned by XXXX

Alex Watts :

Its bad news then I am afraid.

JACUSTOMER-apnb7zgt- :

xxxx refers to the company who I would rather not state

JACUSTOMER-apnb7zgt- :

also item 6:

Alex Watts :

If there is a contract and you signed it, then you are bound by its terms and conditions.

Alex Watts :

6?

JACUSTOMER-apnb7zgt- :

Yes, but is there no recourse for IP?

JACUSTOMER-apnb7zgt- :

seeming that it says we own the text photos and other data provided?

Alex Watts :

Sadly not - this is because you have signed a contract that you sign everything over

Alex Watts :

You have signed a contract which states they own everything

JACUSTOMER-apnb7zgt- :

are they not in breach of a conflict of interest?

Alex Watts :

As this is a business to business contract you do not have the same rights as if this would be a consumer contract.

Alex Watts :

No - because there is nothing in the terms to state they are in breach

Alex Watts :

Unless the agreement stated otherwise they can do what they want with it

Alex Watts :

I am sorry if this is not the answer you want and it is certainly not the one I want to give, but I have a duty to be honest.

Alex Watts :

Can I clarify anything about this for you today please?

JACUSTOMER-apnb7zgt- :

it also states that 'you own the graphics and other visual elements that we create for you for this project'

Alex Watts :

OK - so you own those bits but not the software code.

JACUSTOMER-apnb7zgt- :

i'm trying to find some angle to get something back

JACUSTOMER-apnb7zgt- :

so if indeed the visual elements are ours, would I be right in thinking they could have the same functionality but would need to alter the format of how it looked and also change all content which we aided?

JACUSTOMER-apnb7zgt- :

developed

Alex Watts :

You can in terms visual elements, but not in terms of the code.

Alex Watts :

So if they changed the visuals then they would not be in breach of IP.

JACUSTOMER-apnb7zgt- :

OK, so thats of interest, if the visual element remains the same and is live, what recourse would I have?

Alex Watts :

You could sue for breach of IP of that.

Alex Watts :

But it would be hard to put a value on it.

Alex Watts :

You need to write and set out your losses and request a remedy within 14 days or say you will go to Court within 14 days. You should make sure you send this recorded delivery and keep a copy.

If they do not remedy you then you can issue proceedings in the County Court. You can either do this online at: www.moneyclaim.gov.uk or by completing form N1 http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf and take it to your local County Court.

The Court will then issue a claim which a copy will be sent to the Defendant who will have a limited time to defend it, if not you can enter Judgment and enforce.

If the matter is defended it will be set down for a trial. If the claim is for £10,000 or less it will be a small claim and you will not need representation.

Can I clarify anything for you about this today please?

JACUSTOMER-apnb7zgt- :

I am currently trying to find out what this system looks like, but will need to sign up to their data base

Alex Watts :

Yes

JACUSTOMER-apnb7zgt- :

Ok,

Alex Watts :

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.

Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.

Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

JACUSTOMER-apnb7zgt- :

how would i go about pricing my loss?

JACUSTOMER-apnb7zgt- :

I believe the small claims would be best as cannot afford huge legal fees

Alex Watts :

You can put TBA and let the Judge decide.

Alex Watts :

You can put the claim would be £10,000 or less to make sure it is a small claim

JACUSTOMER-apnb7zgt- :

OK, great, how would you term this statement to the courts>?

Alex Watts :

Just when it asks for the value - TBA but less than £10,000

JACUSTOMER-apnb7zgt- :

TBA by the small claims courts?

JACUSTOMER-apnb7zgt- :

ok great

Alex Watts :

Yes, but make sure it says less than £10,000

JACUSTOMER-apnb7zgt- :

So my understanding is that I should look to detail as much as possible?

JACUSTOMER-apnb7zgt- :

for the benefit of the claim?

Alex Watts :

Yes in particulars.

JACUSTOMER-apnb7zgt- :

I believe there is some conflict in the terms

JACUSTOMER-apnb7zgt- :

sayihe graphics and visula elements

JACUSTOMER-apnb7zgt- :

but then in a nother clause stating:

JACUSTOMER-apnb7zgt- :

unless otherwise stated on completion and settlement of all agreed fees copyright of design; and text; and images; and animation; and film; and programming; and scripting; and database design is owned by XXXX

Alex Watts :

ok - but then images are still yours

JACUSTOMER-apnb7zgt- :

I can see this one being a fine line of what has been breached, but will need to let the courts decide.

JACUSTOMER-apnb7zgt- :

Ok, finally,...

Alex Watts :

ok

JACUSTOMER-apnb7zgt- :

if i state my issue with the system and they change it by just tweeking the design slightly, I will loose any opportunity to get finacial recourse?

Alex Watts :

No - because unless it says Beta then you can.

JACUSTOMER-apnb7zgt- :

what constitutes as a change from the original design

Alex Watts :

I can't say that would be for a Judge

JACUSTOMER-apnb7zgt- :

Ok, sorry, beta?

Alex Watts :

Yes testing

JACUSTOMER-apnb7zgt- :

Would you advise me getting my letter reviewed by a solicitor before sending out?

Alex Watts :

You don't need to as it would be a small claim.

JACUSTOMER-apnb7zgt- :

but did you not advise that i will have to write a letter to them first? which they need to respond to in 14 days?

Alex Watts :

You need to write and set out your losses and request a refund within 14 days or say you will go to Court within 14 days. You should make sure you send this recorded delivery and keep a copy.

If they do not refund you then you can issue proceedings in the County Court. You can either do this online at: www.moneyclaim.gov.uk or by completing form N1 http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf and take it to your local County Court.

The Court will then issue a claim which a copy will be sent to the Defendant who will have a limited time to defend it, if not you can enter Judgment and enforce.

If the matter is defended it will be set down for a trial. If the claim is for £10,000 or less it will be a small claim and you will not need representation.

Can I clarify anything for you about this today please?

JACUSTOMER-apnb7zgt- :

ok, i hope this will provide me with some valuable information, i appreciate your time.

Alex Watts :

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.

Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.

Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

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