Imitation may be the sincerest form of flattery, but whether you consider yourself an artist or an entrepreneur, it’s infuriating to find that the designs you carefully crafted are being sold on a competitor’s website. Unfortunately, it’s not an uncommon situation.
The good news is that sites like Etsy, FaceBook and Amazon have mechanisms for taking down the offending pages selling infringing products. However, they can only help if your design and business meet their criteria for protection.
The DCMA & Your Designs
Your protections by these companies fall under the Digital Millennium Copyright Act or DMCA. The owner of a design or other protected materials can file a complaint with the hosting company to have infringing materials removed. The complaint, a request for takedown, includes a statement as to the ownership of the underlying design or mark.
This is not a guarantee of protection, though. The accused infringer is permitted to challenge the takedown and demand proof of ownership of the design. At that point, there is a time limit for the design owner to “put up or shut up” – either showing proof of ownership and/or filing a federal lawsuit.
If you’re working with an attorney and have registered your design with the U.S. Patent & Trademark Office and/or the U.S. Copyright Office, you should be in good shape for this challenge. Trademark and copyright registrations may be sufficient to prove ownership and squash the challenge.
But what if the design hasn’t been registered? What can be done?
Protection Limits for Unregistered Designs
If you have not registered your design, this type of situation can be challenging. Under U.S. law, copyright rights attach when an original work is created in a tangible medium. However, some online entities such as Amazon or Etsy require that the owner produce an actual registration to document their ownership.
Without that registration, you won’t be able to ask for their help in the takedown of the offender. While legally you may have rights to protection, you’re limited to what the hosting company will do for you. In addition, copyright registration is required to file a court case and collect damages for infringement. Moving forward to protect your design without a registration for your mark is possible, but very limited.
Registering a copyright is relatively inexpensive, but can take a few months for the registration to issue. There is a process to expedite registration, but the fees can be over $1000 per application.
Avoid playing catch-up with potential design thieves. The best defense is a good offense. An experienced attorney can determine the most efficient way to protect your most vulnerable works.
The longer you wait to register your copyright or trademark, the more expensive it can be to enforce your rights. Contact us to start a cost efficient protection program.