Is an online listing infringing your brand name?
Finding that another company is selling similar products to that which you sell whilst using a similar (or identical) brand name can be extremely frustrating. Knowing that another company is attempting to benefit from the hard work, stress and investment that has led to the goodwill that your business has generated can certainly feel unfair. If this occurs, it is important to consider the options available to you so that you are able to take action immediately.
One common form of action that sellers tend to pursue is that of a take down notice through the respective websites such as Amazon, Ebay, or Etsy. This is a rather easy, automated process which allows brand owners to notify the marketplace of an infringing brand. The marketplace will then notify the other party and often take action.
Whilst take down notices appear to be rather easy and cost effective, recent case law has confirmed that there are indeed consequences to the use of these take down notices which constitute as formal actionable threat that can be an unjustified threat if submitted without genuine reason. My colleague recently wrote about the effects of the Carku v NOCO case which has meant that formal legal action can be taken against the issuing of a take down notice without justified reason.
Therefore, it is essential that legal advice is taken before actioning such take down notices. It is also important to consider the intellectual property rights that your business owns and compare these to the listing in question. We strongly recommend that any new business considers investing in protecting their brand name through trade mark registration which would grant the owner a monopoly right to the use of that mark.
Those businesses that own various intellectual property rights should also be mindful of using the correct right to substantiate a take down notice. The use of an incorrect right, which then cannot be substantiated to justify the eventual take down, could land businesses in a heap of trouble.
Get in touch with email@example.com if you require any help in your greeting card business. We work closely with the Greeting Card Association and deal with this market on a daily basis.
Written by Mohammad Khan – Solicitor
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