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UKSolicitorJA
UKSolicitorJA, Solicitor
Category: Law
Satisfied Customers: 4312
Experience:  English solicitor with over 12 years experience
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I sell sofas on eBay and without realising used an old "Dfs"

Customer Question

I sell sofas on eBay and without realising used an old "Dfs" picture for one of my ads. Dfs rang our office and requested the person answering the phone to remove the photo and gave us 2 weeks. I am not sure if Dfs thought they were talking me - the owner. However, this employee did not inform us (intentionally) as he was planning to leave to work for a rival. In the end eBay removed our adverts on Dfs's request. This caused us huge problems as we lost all our eBay sales history which is important for customer confidence and we had to start again. I spoke to the guy from Dfs and it was he who told me that he had called my employee and he realised that we were totally unaware of his call. However, the damage to our business by removal from eBay had already been done.
I need to know - what are the rules on copyright infringement notice. Should Dfs have given us written notice re the warning. I feel ringing an employee was not right? The photo we used is no where on their site and other people are still using it. Surely there are rules about giving proper written notice so that we had the chance to correct it?? Shortly afterwards we received an email from the same person at Dfs asking us to remove a different picture. This email was picked up by all my staff and the issue was promptly sorted. Surely, this notice in writing is what Dfs should have done first time round as well. What are the rules please? Thank you
Submitted: 2 years ago.
Category: Law
Expert:  UKSolicitorJA replied 2 years ago.

UKSolicitorJA : Hello
UKSolicitorJA : Have you ever used DFS's photos previously before this incident as you say there was another incident after where they emailed your business?
JACUSTOMER-rgx8v1wy- :

No - the first time a Dfs picture came up was the incident I have explained. Following this incident we put up our adverts again and we were then contacted again a few weeks later by the same person from Dfs ( I think he is in charge of monitoring eBay adverts ). He pointed out that we needed to remove a different picture ( it was a v small one ) which we did immediately. I feel this is the kind of notice we should have been given the first time round as well instead of a phone call to a random employee. Is there any law/rules re this. After the first incident the guy from Dfs was v quick to point out that he realised we were innocent in all this ( and that employee was at fault) and he immediately informed eBay to allow us to continue advertising. At the time it felt as if both eBay and Dfs were v quick to try and rectify things.

UKSolicitorJA : Thank you.
UKSolicitorJA : unfortunately, the obligation is on you not to infringe copyright or intellectual property rights of a third party, including DFS. Therefore, the law would expect you to make sure that you have systems in place to ensure that no third party copyright or intellectual property rights are breached, whether or not you are notified of such breach is another matter.
UKSolicitorJA : there is no obligation on DFS to notify you of the breach in a particular way, the fact of the matter is that they could have taken legal proceedings against you for breaching their copyright but they have not done so which you should be glad about. The fact that they notified your business by telephone is absolutely permissible and it is your problem I am afraid that your employee did not make you aware of their phone call.
UKSolicitorJA : sorry, but I can only advise you in accordance with the law. Can I help further?
JACUSTOMER-rgx8v1wy- :

One question - we did search for any pictures that we used - but if the picture is nowhere to be found on DFS site etc then it is easy to get wrong, especially when you see other people using it. Does this mean that there is no requirement for any notice of infringement? Thanks

UKSolicitorJA : Yes, it is up to you to ensure that the pictures do not infringe IP rights of others, whether or not the owners notify you.
UKSolicitorJA : hope this clarifies. Please remember to rate my answer so that I am credited for my time.
UKSolicitorJA : thank you
JACUSTOMER-rgx8v1wy- :

Ok thanks - one final question. Someone can sue in such cases without any prior notice? It is impossible to be sure you are not in breach. Most aspects of law allow for notices to be received by right before action so I am surprised about this. Thanks

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