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Alex J.
Alex J., Solicitor
Category: Law
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Experience:  Solicitors 2 years plus PQE
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I run a wedding photography business and I have purchased a

Resolved Question:

I run a wedding photography business and I have purchased a domain name http://www.glen-yr-afon.com

This is to advvertise our business purely as a wedding pho9tographer who has photographed weddings at this venue, we do not say that we are connected to, affiliated to or recommened by the hotel which is Glen Y Afon hotel in usk.

We ahve now hada threatening letter telloing us to take this site offline or they will seek an injunction forcing us to do so, they state that our website under 'tort' is 'passing off' and infringing on their intellecftual property.

Am I legally entitled to promote my business on the domain name a/a that I have purchased. If so what restrictions are placed upon me I am quite happy to put in big bold text that we are not connected to, associated with or recommened by the venue. We appreciate that this may be a minefiled but we need some initial guidance.
Submitted: 3 years ago.
Category: Law
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you for your question and welcome.

My name is XXXXX XXXXX I will assist you.

Why have you chosen the name Glen Y Afon?

Are you geographically near to the hotel?

Kind regards

AJ
Customer: replied 3 years ago.

My company is Premiere Photography we are based in Newport Gwent. Glen Yr Afon hotel is a venue approx 10 miles away from where we live that cater for weddings. Another photographer was doing something similar to what we have done so I researched available domain names, the hotels runs it website under .co.uk but they hadnt bought .com which as far as I have been told is a domain name run outside the uk and us such cannot be controlled by the domain 'police' within the UK


 


I was also told that just because a domain name has the same name as another business as in this case that there was nothing to stop us advertising our business. If you click on www.glen-yr-afon,com you will see the basic website we have running on that domain.


 


It is not our intention to pass off that we are associated, recommended or connected with the hotel in any way whatsoever all we want to do is get the message across to people who are getting married there that it is a venue we have photographed many weddings at and a lot of people who get married want to know if their photographer has photographed weddings at their chosen venue, this is all we are trying to achieve. Would it help you if I scanned and emailed the letter we have received from the hotel?

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you for your response.

I will draft a answer to this. It may take me some time so please do not be concerned if you do not hear from me until this evening.

If you can send the letter [email protected]

Kind regards

AJ
Customer: replied 3 years ago.

will do I will scan it now email it to that address for your attention thank you for your attention

Expert:  Alex J. replied 3 years ago.
Thank you very much

Kind regards

AJ
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you for your patience.

I apologise for the delay but the notice has not yet come through. I will chase the site administrator.

To give you a bit of background what you could potentially be guilty of is Passing Off. This is a tort where someone unfairly rides on the back of the good will of another party in order to create an unfair commercial advantage.

The problem you are in the same Geographical area and riding on the back of their reputation as a wedding venue to procure bookings. At this stage you are unlikely to suffer any damages against them but if you generate any major revenue you may be liable to account for these sums.

What is the name of your company?

Kind regards

AJ
Customer: replied 3 years ago.

Our company name isXXXXX it is we havent taken any bookings from this website but that said the SEO hasnt been done yet. If we clearly state on the home page that we are not connected to, recommended by the venue and that we are merely showing ourselves as photographers who have photographed at that wedding would this suffice. As per the letter could they get an injunction against us and could we be liable for their costs. Dont worry about the delay in getting back to us receiving the info today is fine. When you say we are in the same geographical area this is a bit confusing because ok we are about 10 miles away but we are based in Newport and they are based in Usk, two seperate towns. It may be beneficial if you havent already done so to look at the website domain online and see how we portray our advert. they also refer to a photograph, I took that photograph and I own the copyright and it was taken from a public footpath so from past experience I would assume that I can legally use it.

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

Firstly in relation to the photograph yes you are correct you own the copyright if you took the picture.

Secondly potentially yes they could get an injunction, even if you say there is no connection you are still benefiting from the fact that people may be looking for the hotels website and accidentally end up at yours.

You are not actually committing a criminal offence or anything as this is a civil matter and injunctions are very expensive so the hotel not bother doing this. The botXXXXX XXXXXne is the hotel will argue that you are damaging their brand using their name to direct traffic to your business and whether this argument is valid or not, it is an argument that you risk having should they seek injunctive relief.

I look forward to hearing from you with the notice.

Kind regards

AJ
Customer: replied 3 years ago.

Hmmmmmmmm looks like we are damned if we do and damned if we dont I think they would go all the way, could they hit us with costs if they went for an injunction? Are they likely to succeed (64k question).


 


If we remove the layout we currently have (assume you have seen it) and replace it with


 


This website domain is owned by Premiere Photography in Newport we are not associated to or connected to Glen Yr Afon Hotel in Usk.


 


If we do this at least some people may visit our website. We have a new website under construction and we will ensure that our SEO drives this venue to the top of google listings.


 


What is sticking in our throats is that we have literally bailed them out of two masive problems at weddings where they could have been sued by clients and this is what we have to contend with.


 


 

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

It is so difficult to say what the success of an injunction is likely to be. Is the name Glen Yr Afon in anyway generic to the area?

Kind regards

AJ
Customer: replied 3 years ago.

Sorry had to go out and see clients, I have to say Glen Yr Afon is not a common name, just as an idea what if we called our house Glen Yr Afon, 41 Court meadow, langstone could we then tell them to go away

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

The difference there is that you will not be using the name for commercial gain.

Generally these issues tend to stem from something as simple as not asking for permission. Have you considered asking them for permission in return for free advertising on your site for example?

Kind regards

AJ
Customer: replied 3 years ago.

No we didnt ask them for permission and to be honest its something we wouldnt do by going cap in hand so to speak I dont like being beholding to anyone. How do you feel about us doing as suggested in the previous email


 


If we remove the layout we currently have (assume you have seen it) and replace it with:


 


This website domain is owned by Premiere Photography in Newport we are not associated to or connected to Glen Yr Afon Hotel in Usk and just hyperlink that to our main website as opposed to the direct advert we currently use

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

Absolutely I agree you should not appear that you are on the back foot, but this is a dispute and has to be resolved.

It can be resolved in one of the following ways:
1. You call their bluff ignore them and see if they take court action or not;
2. You change the name, relinquish or sell the website. ;
3. You come to an agreement with them that is mutually beneficial.

Whether they take court action or not, is entirely their prerogative and their issue with the dispute is the name you are using. The statement you have suggested is s not going to resolve the dispute (I would agree though it wont make things worse)and therefore it is up to them if they want to take action or not.

If they do take court action and you win, it is still going to cost time and money defending it and even if you do win you wont get compensation for your time and will probably only get about 80% of the costs back.

I am afraid when it comes to IP disputes this is the nature of the beast and any argument is a matter fact and down to who is prepared to take up the issue at hand.

Kind regards

AJ
Customer: replied 3 years ago.

Thanks AJ if you are local to Newport in Gwent I would like to buy you a beer or severa; for all of your help it is very much appreciated. I am sorely tempted to call their bluff.

Expert:  Alex J. replied 3 years ago.
Hi,

No problem.

Thank you that is very kind.

I am happy to discuss any issues relating to passing infringement if you need any further assistance.

The best suggestion I can give you is do not allow fighting a point of principle to distract from running your succesful business. It has happened to me before and you cannot get the time spent back.

Kind regards

AJ
Customer: replied 3 years ago.

I agree there is more than one way to skin a cat I will hit them with SEO and other advertising they wont know whats hit them. Thank you for all of your help and if you are down this way a beer or several is very welcome. Thanks again.

Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

I wish you the best of luck.

Kind regards

AJ
Customer: replied 3 years ago.

And to you will provide feed back asap for you. Is there any way I can get a transcript of our messaging to refer to

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

I will report this to customer service and they should be able to assist you. Otherwise it may be quickest to just copy and paste it off the screen.

Kind regards

AJ
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