Could your branding, an innocent picture on your blog, or some other minor mistake cost you plenty? You bet! Here’s how to avoid damaging mistakes that can cause serious damage to your pocketbook.
Several years ago we hired an offshore designer to do some work on the back pages of my husband’s website. We posted the page along with a picture of a woman wearing a headset. Two years later, we received a demand from Getty Images for payment of $1,300 for copyright infringement.
Apparently, the Web designer had taken a picture from Google Images and used it without authorization.
Unfortunately, even though we didn’t commit this violation, my trademark attorney advised us that we were responsible because we hired the designer. When we contacted him, he said, "I did nothing wrong — it’s your problem!"
Needless to say, we were pretty upset. Because he was offshore, our only recourse was to report him to the agency we used to locate him and ask to have him removed. We ended up paying $650 to settle the infringement claim.
Copyright infringement
There is considerable confusion these days about what constitutes copyright infringement, even among attorneys. When we began the process to trademark a business phrase for my company and to patent a related product, my attorney explained that you cannot "copyright an idea." Unless you have registered a trademark, there is nothing you can do to stop another person from using it.
Copyright law protects you from the moment you create the intellectual property. What is copyrighted, however, are the words, logos, or other supporting materials as a whole. Again, you cannot copyright an idea.
If you copied one or two sentences from this article and republished it elsewhere, that may not constitute copyright infringement (under the "fair use" doctrine). If you republish the entire article into your blog without permission, that could constitute infringement.
What about that "share" button?
When a site has a "share" button or other sharing tools, it encourages readers to share the content, or some portion of it, with others. Current litigation has raised the issue of whether sharing tools can cloud copyright protections.
Trademark infringement
Trademarks can be expensive and difficult to obtain. You must begin using the "TM" symbol as soon as you begin the marking process.
Next, you must identify the "classes" in which you want to use the mark. There is a fee for each class you select.
The third step is that your attorney reviews all the current marks in that class and makes a determination as to whether you will be able to obtain the mark.
If the mark clears those hurdles, it’s then submitted, along with your fees. Sometimes the mark sails through and other times you may be requested to make changes because your mark is too close to someone else’s mark.
Once you receive approval for your mark, you can begin using the "®"; one of the reasons that NAR is so aggressive about how its trademarked phrase "REALTOR®" is used is that failure to use and protect the mark can result in forfeiting it.
When there is trademark infringement
Three years ago I received a call from a woman in Wisconsin who had a "Really Awesome Women" group. The group had trademarked the phrase "Really Awesome Women" for use in business. At that time, my company was using a similar name for a women’s real estate leadership conference. When the group became aware of our use, they immediately contacted us.
I spoke to our trademark attorney and he examined their documentation. His conclusion was that we needed to stop using this phrase immediately. He drafted a letter to the group advising them that we would no longer use the mark as per their request.
Protect yourself and your business
Here are some steps that you can take to protect yourself from lawsuits and hefty fees:
1. Whenever possible, create your own content. Take your own pictures and write your own materials.
2. Use licensing services such as Clipart.com or Photos.com, and pay the licensing fees for the photos or music that you use, or search for material that is approved for free commercial reuse and alteration. Some Creative Commons material is licensed for commercial reuse, for example, in some cases with specific attribution requirements.
3. If you want to reference another person’s blog post, consider rewriting the material as a one- or two-line summary of the post, and then link back to the original post. Alternatively, contact the owner/author and ask for permission to repost larger excerpts. If you can’t obtain permission, it’s smart not to republish the material.
4. Litigation is a last step. If someone is using your material or trademark without permission in a way that you consider to be infringement, a good practice is to contact that person immediately and politely request that this material be removed (if it is a website), and to stop such practices at once. The next step is to ask your attorney to send a cease-and-desist letter.
If that doesn’t work, you must seriously weigh what steps you’re willing to take to protect the mark or copyrighted material from infringement. A lawsuit could cost you tens of thousands of dollars in attorney fees, and there is no guarantee that you will win.
