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Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3774
Experience:  Solicitors 2 years plus PQE
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i have been informed my product infringes on someone elses

Resolved Question:

i have been informed my product infringes on someone elses copyright what can i do as i disagree
Submitted: 3 years ago.
Category: Law
Expert:  Alex J. replied 3 years ago.
Alex J. :

Hi,

Thank you for your question and welcome.

Alex J. :

Copyright is unlike other Intellectual Property because it cannot be registered.

Alex J. :

It is therefore entirely the prerogative of the supposed infringed party to assert their rights.

Alex J. :

If you disagree with them you need to tell them you are only using your own original content and have not sought to profit or damaged the goodwill of their copyrighted property.

Alex J. :

If they still disagree then the onus is on them to sue you in court - and you would have to defend this.

Customer:

the product in question is a wheeled shoe like a well known brand heelys but my product whilst similar in name ( healys) has never been laid out to be anything other than it is - the company i contacted informed me that the patent is pretty well sown up yet i questioned how millions of 'like' products are available if nobody else can produce such a product unless it bears a licenced name - the reply was broad and simple - every wheeled shoe in the world is counterfeit !. my selling format is ebay, amazon and phone sales from my own website. does your advice still relate as based on that i am happy to continue with sales and see if they wish to pursue it further

Alex J. :

Hi, Thank you. Have they provided you details of what they believe you are infringing? If it is a patent then can they show you a patent document?

Customer:

they basically said the whole design of the shoe although the patent part of the conversation was specific to the heal the design of the heal and the mechanism, there was a mention of the similarities in name but this did not seem to be a specific issue with them - as far as im aware they have had no previous dealings with this particular brand and have not done any test purchases or sampling of my product - they have also not had similar listings on ebay removed by private sellers whom have been selling the product longer than myself and at time of writing this brand is still readily available.

Customer:

i will once im armed with some facts and knowledge prepare a detailed email which will then formalise the issue in writing as so far the issue has been dealt with via a third party ( ebay) and i did not disclose whom i was during the direct phone conversation

Alex J. :

Hi, Thank you. Does the complaining party own the patent to the heal design?

Customer:

they say so and i have no reason to disbelieve them

Alex J. :

http://www.ipo.gov.uk/p-ipsum.htm You can search for Patents here. Ultimately if you are infringing their patent then you have to stop.

Alex J. :

If you believe you are not then you have to just call their bluff and say that if they want to pursue that is their prerogative.

Customer:

if an offence has occurred what is it ? and what would be the penalties ( civil-criminal)

Alex J. :

Hi, Thank you. The main penalty could be the delivery up and destruction of any infringing articles plus an account of profits made.

Alex J. :

In some circumstances there are criminal proceedings - it is unlikley because you are not creating a counterfeit product it is your own product.

Customer:

THANK YOU, ***** ***** ALLOWED TO SELL THE PRODUCT AS A SHOE WITHOUT THE ROLLER ATTACHED - IVE BOUGHT THE PRODUCT AND WANT TO MINIMISE LOSSES

Alex J. :

Hi, Thank you.

Alex J. :

Essentially it is still the same item but then you would detach a functional part of it.

Alex J. :

To be 100% certain I would confirm with the complaining whether they are ok with this, as it is their prerogative to make the complaint?

Customer:

MANY THANKS

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