UKC

To put things in context - I'm off belay, just chatting informally to people who may know more than me about this particular topic, but ultimately all responsibility is mine, for judging the quality of their advice and deciding what to do next. There, caveat out the way.

I have a software product and I have written a 15 page document (yawn!) describing features and benefits. I also shaded some features and described them as those features that to the best of our knowledge were unique to our product - and if anyone became aware of inaccuracies to let me know and I would update accordingly. Which I would - I have no interest in misrepresentation.

Then this morning I received an email from our main competitor saying if we didn't remove most of the shading he would sue us for damages. I said I would remove it if he could demonstrate that his product had those features; he declined, and repeated his threat to sue for damages.

Now he's a nasty piece of work and I don't like being bullied, ,so I have two questions: Is his threat credible? I thought to sue for damages he would have to prove loss arising from our assertions, and seeing as I don't even mention his product that would be a bit tenuous. Secondly, is it that unreasonable to publish in good faith (which I am doing) a document which describes our USPs? Comments welcome.

In reply to Rob Exile Ward:

<complete ignorance of law caveat>

Surely if he won't show you that he has those features then what you say remains true - to the best of your knowledge they are unique to you.

I think the above is rather similar to the atheist/agnostic position on god. There - it's a religion thread now.

In reply to Rob Exile Ward:

(Bump) I don't suppose I should be surprised that 'free' legal advice is a bit thin on the ground...

Just don't bother asking me about spread sheets or relational databases, you swine!!

In reply to Rob Exile Ward:

My thought would be that if he had anything to threaten you with he'd do so. If he's threatening to sue, but won't say for what, then either he's ultra-keen to get you in court or he's trying to browbeat you into backing down.

Does he own a racehorse? Is he a heavy sleeper?.....

In reply to Rob Exile Ward:

I got involved with Trademark litigation a few years ago, which is quite similar to intellectual property law, all very arguable and frighteningly expensive.
All I can say is that he is taking quite a risk with his threat, in this field you should be pretty sure what you are saying before making threats.

In reply to Rob Exile Ward:

Don't take him on yourself - find a solicitor you can get on with who has commercial experience (and preferably can readily understand your product) and let them write a letter dealing with it.

Always worked for me as best way of dealing with specious claims.

In reply to Rob Exile Ward:

I think it's more that knowledgable advice on software copyright law and groundless threats is pretty thin on the ground!

I'm not a copyright lawyer and try to steer clear of software patents but from a general IP point of view the questions I would be asking are:

- Has your competitor mentioned a patent or copyright? The big difference from your point of view is that copyright only applies if he can show that you copied his product of specification, if you came up with something similar completely independently that isn't an infringement. A patent can only relate to a software with a real technical effect (rather a narrow and high threshold) but it protects a technical feature with a monopoly right - you don't need to have copied anything to infringe, if you happen to have come up with the same solution completely independently that won't help you.

The other relevant issue is that there are provisions under patent law that prohibit 'groundless threats' of infringement but my understanding is that this doesn't currently apply under the CDPA '88 (but the Law Commission has announced that it is reviewing this question). Unfortunately, this rather encourages bullies to accuse competitors of copyright infringement, knowing that there is no specific offence of issuing a groundless threat.

Anyway, your competitor's taking exception to you 'shading' or highlighting what you think are your unique features is interesting. He isn't objecting to you asserting that your product has these features, merely that you can't highlight them as unique. That implies that he doesn't have relevant patent claims or a genuine copyright claim (unless he has a brochure similarly highlighted, I suppose) or he would be telling you you can't advertise or commercialise thes features at all. Unless he's an idiot who doesn't understand what rights he really has and hasn't bothered talking to his legal advisors (who would certainly be advising against the sort of letter he has sent to you).

As for damages, he would have to show he had suffered some damage (or show that you had profited unfairly, and make a claim based on that). This seems unlikely based on what you say.

If we received such a letter, I would reply in a helpful, interested way, as to what he thought the legal basis for his unusual request might be, but I wouldn't back down. Genuine notice letters hinting at infringement usually refer to a specific patent or trademark, state that it is in force and then rather casually enquire as to whether you were aware of its existence and might be interested in discussing it. In general, the more restrained and carefully worded they are, the more seriously I take them.

In reply to Dave Garnett:

Thanks, that's very interesting and pretty much in line with what I hoped was the case.

In reply to Dave Garnett:


Is the complaint not that the advertising brochure is factually incorrect in stating certain features are unique to Rob's product rather than that there are copyright/patent infringements? That's something that should be relatively easily provable without lawyers or courts assuming both parties are willing to communicate.

I'd demonstrate in writing a willingness to remove or amend statements included in error that are proven to be factually incorrect then wait to see what he comes back with. What more can Rob actually do but again, demonstrate willingness to deal with any real issues but not bow to empty threats?

Rob, can you get access to a copy of the competitor's product to double check your claims? If you're sure of them then you can stand by them. Unless they've money to burn on ruining smaller competitors with protracted spurious legal battles chances are he's bluffing.

jk

In reply to Rob Exile Ward:

oh and... be ready for him releasing a new version with your USP added to his software

stay a trick ahead yourself!

In reply to Rob Exile Ward:

I'm not a lawyer and don't know anything about law. So, my understanding is that it would be very difficult for him to sue you because, even if he could prove that his product had the relevant features he would have to show that he has lost, or not gained, business as a result. In the case of actually losing business I would think that would be impossible to prove. If any of his clients had moved to your product because of a feature which they believed you could offer but he can't then his own sales and account managers are to blame. In the case of failing to win business that he otherwise might have done I think this is very difficult to prove and I believe there might be a concept in law which usually rules this out as a source of damages. At least, I know it is common in contract to limit damages to direct loss (ie losing an existing client). I don't know if or how that could apply to this case.

In reply to Bob Hughes:

Thanks for that. In fact my business partners are more risk averse that I am, so I may not be taking this further on this occasion, but it's been educational, to say the least.