Help I don't want to go to Jail!!!!!

[Billbob]

Hello all. Great little site here I've found and I'm hoping you guys can impart some useful advice.

Basically I started my own business last year and was faced with the decision of whether or mot to use a Franchise. After much deliberation and advice from another forum user who was also contemplating the business franchise I decided it would be better to go it alone.

The other guy I was in contact with let me see some of the marketing material he was considering using. When he decided not to go ahead with the venture I asked if he would mind if I used some of the marketing material that he had sowed me. I ended up slightly changing the 5 page word document he provided for sending to potential clients.

Another person has now set up the same business in my area , by purchasing the franchise and I've just found out that the marketing material actually originated from the franchise company and not the individual whom I had thought it had.

Hence I'm now worried that I have effectively plagarised someones material without their consent leaving myself open to being sued. I found this out when the other competitior in my area (who actually bought the franchise) sent me some marketing material and I had also requested his - & lo and behold they were nearly identical!!

The business is only small with a turnover of less than £10k pa so I can't imagine the franchisor being concerned about suing owever I'm not sure what action I should take and if I'm worrying unnecessarily.

Please help with any advice.

Thanks

BillBob

[Rob Holmes]

<< Moved to Legal >>

Well your friend probably risks losing his franchise as he is bound to have broken the agreement acting like that.

If you're admitting copying the franchisoors marketing material I guess you could be sued by them for losses or something.

I as a franchisor would not be very happy at all.

Maybe Handsongroup will add a 'proper' legal perspective rather than my ramblings.

Rob

[bwglaw]

I would ask, do you have in writing express consent to re-use the marketing material from this 'other guy' and does he actually own the copyright of that material, or was he unlawfully copying and distributing it?

Are you able to refrain from using the same marketing material if the case may be?

Is this 'other guy' a Franchisor who sells franchises? If so, as Rob said he may be in breach of the agreement however I am not too clear on the contractual relationship between you and this 'other guy'.

If you could concisely elaborate your contractual relationship with the 'other guy' , in addition to the above questions, I may be able to advise further

[Billbob]

Hi Handsonn & Matrixx,

The 'other guy' I referred to was simply someone else who had considered setting up a similar business (as what the Franchise was offering). He never actually purchased the franchise nor did he end up pursuing the business. He was just 'toying' with the idea and must have gotten hold of the franchise's marketing material (which I had presumed was his when he showed it to me and granted permission for me to use it).

He was simply someone that I was in correspondence with through a similar business internet forum.

thanks for your thoughts

[bwglaw]

I re-read your original post and understand. I read it in haste the first time round.

It appears that you may not have permission to even use the materials, let alone to either copy or modify it in any way. Hence my question if you are in a position to refrain from using the material.

[Billbob]

Sorry Handson, missed that Q in my haste!

Yes I can refrain from uising it. In fact I only found out yesterday that I was plagarising and immediately made the decision to stop sending out the marketing material to any further clients until it is updated. My website also has some content related to it which I will update and change over the weekend. Can't do anything about the clients I've already sent the meaterial to however!

Thanks for your help

Billbob

[VeryMark]

The short answer seems to me to change your material as soon as practical before the franchisor happens to come across it and threatens legal action - it's always better to do something to a timescale of your own choosing.

I don't know how quickly it's practical for you to change without putting the cost up too much but, if the franchisor finds you first, most people would be prepared to give you a period of grace if you are honest and explain the circumstances - but don't leave it any longer than necessary.

The other question here of course is the cost/value of what's at risk, i.e. do you have 10,000 unused brochures which will take 10 years to use up or 20 leaflets which can be replaced in five minutes?

[Billbob]

Thanks Crossguard. Luckily its more a case of 10 packs which are now in the bin!!

[cjd]

Pragmatically, if you wish to carry on in the business:

1. un-bin the material

2. read it and make headings of the key points using only your own words and changing the order.

3. bin all but one copy of the material

4. 1 week later re-write the material from your own notes without referring at all to the original.

5. compare what you've written to the original - it should be now different in both form and content but still do the same job.

6. bin the original

If you want to be utterly bomb proof ask someone else to write the material from your bullet points. [This is the way IBM lost it's copyright on the BIOS of the first PC which created an industry :-]

With a bit of luck no-one will noticed your original material ;-)