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Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3653
Experience:  Solicitors 2 years plus PQE
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My daughter and I operate a small ecommerce business selling

Customer Question

My daughter and I operate a small ecommerce business selling mobile phone cases which we ship in from China. We have just been advised by someone in the US that as the artist she owns the 'intellectual' copy right to these design and we cannot reproduce them. We bought them in good faith from our wholesaler and now we face being unable to sell goods which we have paid for (little hope of any action succeeding in china). The 'Artist' is not interested in agreeing any license arrangement citing it is in the 'hands of my solicitor. What evidence could we ask the 'Artist' to provide to us as proof that the original designs are hers and what is our legal position regarding the stock we still have?
Submitted: 2 years ago.
Category: Law
Expert:  Alex J. replied 2 years ago.
Hi,
Thank you for your question and welcome.
My name is ***** ***** I will assist you.
Have you received any correspondence form the solicitor directly?
If you search this artist can you see any evidence of any designs or anything on her website or place of business?
How much will you stand to lose if you cannot use these covers?
Kind regards
AJ
Customer: replied 2 years ago.

Hi

Nothing received from solicitor. No website found as yet(no link provided). Loss of stock value no more than £ 100 but potential sales loss much more

Expert:  Alex J. replied 2 years ago.
Hi,
Thank you.
Has the artist alleged any damage has been caused?
Kind regards
AJ
Customer: replied 2 years ago.

no

Expert:  Alex J. replied 2 years ago.

Hi, Thank you. I will type a response now with your options. It may take me a little while so please do not be concerned if you do not hear from me right away. Kind regards AJ

Customer: replied 2 years ago.

Hi

We hav now found the Artist's web site and though we can see similar style designs we could not find the actual designs we used on the cases we bought. The designs on her web site all carry the © .

Expert:  Alex J. replied 2 years ago.
Hi,
Thank you.
My apologies for the delay.
Ultimately any claim this lady will have against you may be for breach of copyright. The remedy for breach of copyright is an injunction, delivery up and destruction of the goods and account of profits.
The is no registration service for policing copyright so it is entirely this lady's prerogative as to whether she will enforce these rights. To do so she needs to prove that she is the creator and therefore owner of the works.
You say as a starting point you have found a website of her works - can you find out where the Chinese company obtained the design from?
Kind regards
AJ
Customer: replied 2 years ago.

Not really feasible as the Chinese supplier will not give such info

Expert:  Alex J. replied 2 years ago.
Hi,
Thank you.
If you sell these items without a license from this lady then you run the risk that she will bring an infringement claim against you and seek an account of profit from you.
Obviously it is a calculated risk whether you want to do this or not and essentially if you want to take that risk you should be armed with all the due diligence necessary - finding out where the design on your phone came from may be a start.
Unfortunately there is no policing of copyright so this lady has her prerogative when it comes to suing you. She would still have to prove some how that you are selling infringing works.
If you are happy that the design is original and from your supplier then you have a defence against any claim she might make.
The other danger you run is that you have been put on notice that these are infringing items - accordingly you could be guilty secondary infringement which actually carries criminal liability as well.
I look forward to hearing from you.
Kind regards
AJ

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