Just a copyright issue?

[CryptoPlankton]

I know a small family company who make furniture and sell it online. Their own website has recently gone live, but most of their sales are still through Amazon and a couple of other well known platforms. On one of these platforms, someone else has copied some of their product photos and started offering them at a significantly lower price - they have already sold a few items.

My acquaintances pride themselves on the high grade materials, workmanship and finish (they have invested in expensive machinery and a lacquering booth) that go into their products and this has helped them expand the business successfully. It is highly likely that these "copycats" are producing something very inferior and they aren't perceived as a major threat - just very annoying! I believe the platform has agreed to remove the photos from the other site (presumably on copyright grounds), but I just wondered whether there are any other potential legal issues, civil or criminal, that could be raised in a case such as this (not that I think they would want to take it any further)?

[stewamax]

If the product was sufficiently distinctive such that any buyer would be under the impression that the item was actually made by the ‘small family company’ (SFC), the ‘someone else’ is committing the common law (civil) offence of passing off. Further, if the product is demonstrably passed off and is of obviously inferior quality, the goodwill (commercial reputation) of the SFC is also demeaned and the competitor has exacerbated his offence to extended passing off.

If the SFC has registered the design and with a trademark that was also infringed, the offender may also be committing a criminal offence.

No doubt CK will be along shortly to give a definitive reply.

[Clitheroekid]

No doubt CK will be along shortly to give a definitive reply.

Hmm, intellectual property is an extremely complicated area, and I'm afraid I only know the basics.

There are two types of "design rights" - registered and unregistered. I'm assuming that your chums haven't registered the design.

The creator of an original design automatically becomes entitled to a "design right". But even if it's not registered anyone infringing the right (as would seem to be the case here) is liable to court action. An injunction may be obtained against the infringer, which would tell them not only to stop the infringement but also to `deliver up' to the owner of the right all infringing goods so they can be destroyed.

The court can also award damages and /or require an `account of profit' resulting from the infringement - in other words they can order the infringer to supply all their records to an independently appointed accountant, who would then report back to the court as to any profits made from the infringement. The court would then order the infringer to pay those profits to the owner of the design right.

Action can also be taken against anyone who is merely selling the infringing product, though only after they have been given notice of the infringement and have continued to sell regardless. From a practical point of view, therefore, I would certainly tell Amazon, as if they allow the seller to carry on selling through Amazon they could possibly become liable for damages themselves.

In addition to the above the court can - and normally would - order the infringer to pay the design right owner's legal costs.

Unfortunately, these rights are often just theoretical, as the infringer may well be in a foreign jurisdiction or simply not worth suing.