Managing Director at Fly2golf.com
02 September 2002 11:05am
Can you please advise that if a similar website to "Betfair.com" were to be established if this would be an infringment of any copyright etc.
Partner at White & Case LLP
05 November 2002 16:51pm
The short answer is yes – it is likely to be an infringement of their copyright (and possibly some other intellectual property rights they may own) but it is possible to design and run web sites which do the same thing and which look fairly similar and not infringe intellectual property rights.
There are may Intellectual Property Rights in or relating to a web site based business but the main ones are copyright, databases, patents, trademarks, and confidential information. Copyright protects the content and lay out of web sites, database rights also protect content, patents protect novel ideas, trademarks protect logo’s and certain business and product names and confidentiality allows for the protection of confidential information.
The first step is to ensure that the business model you are seeking to use does not infringe someone else’s patent. Business models and software are more readily patentable in the US and in Europe and so if your business is going to trade in either of these regions I would recommend checking the patent register. (For the US see http://www.uspto.gov/patft/index.html and for Europe see http://gb.espacenet.com). Patents are technical and I recommend that you obtain professional help whether obtaining or licensing your own or when analyzing or licensing others. Remember – if you have a new invention and you disclose its details before you obtain the patent – you will no longer be able to get a patent for it. If you need to disclose patentable information make sure that the disclosure is covered by an enforceable Confidentiality Agreement (also known as Non Disclosure Agreement).
The rival business you are considering will have copyright, compilation and database rights in their web site. You may not copy these, in whole or in part, without their consent. Remember, copyright is a right which prevents copying. It does not prevent independently coming up with a web site which is similar. It is a good idea to keep the working notes and prototypes for the site you create so that you can show the process of its creation – which should not show that you have copied layout, logos or content from another site without permission.
When registered trademarks are a particularly valuable type of intellectual property. You are not permitted to use other peoples trademarks on your products or services unless you have their permission or you fall within some particular exemptions. See http://www.patent.gov.uk/tm/index.htm for information and http://www.patent.gov.uk/tm/dbase/index.htm to search the UK trademark register. Getting your own trademarks for relevant business names, products and services I think is money well spent.
As I presume you will not be hacking into their web site or otherwise obtaining confidential information – this last topic of intellectual property doesn’t require much consideration.
Two final points:
(1) Intellectual Property is complex and valuable to your company and so when designing your own web site – ensure where possible that your company, and not your consultants or other business partners, own the intellectual property to it. (Remember – intellectual property can only be transferred in a written contract – and you should use the magic words “assign with full title guarantee” in that contract).
(2) Intellectual Property is not the only area of law relevant to a web site business. The business you are considering is highly regulated and you should ensure that the web based business you build complies with all the appropriate betting and gaming regulations (See http://www.culture.gov.uk/new_responsibilities/gambling_index.html) as well as the appropriate consumer protection regulations (See http://www.dti.gov.uk/cii/ecommerce/europeanpolicy/ecommerce_directive.shtml).
(Disclaimer: I am a lawyer, but the above is not legal advice and may not be relied upon nor republished without my express consent.)
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