- Original Poster
- #1
I recently entered a niche market where most customers make single purchases, and 90% of them find the service through Google ads. After initial setup and advertising costs, I priced my offerings are between 20-30% lower than the market leader, which seems to have caught their attention.
They revamped their website on January 1st, switching to a brand-new colour scheme and incorporating neon borders and elements for the first time. My website, which I launched on January 3rd, was already in development from October/November with a neon colour scheme—a choice I independently made and can prove with metadata from November screenshots.
Two weeks after I started my Google ads, I received a cease-and-desist email. It accused me of copyright infringement over stock images and simple photo enhancements from Canva, and of mimicking their neon colour branding and borders, which I also sourced from Canva.
The email further accused me of "passing off"—they claimed a customer mistook my website for theirs. They cited over ten years of goodwill and gave me seven days to comply with their demands or after getting legal they are ready to launch legal action.
I responded by disputing their claims. I explained that the images on my site are either my own or legally obtained stock images enhanced with Canva, under a Pro license. Regarding the colour scheme, I highlighted that neon colours are popular in our industry, chosen for their relevance to party and entertainment services, and not unique to any one brand.
Despite their persistent claims, they've cooled off on the copyright issues and haven’t provided evidence of the customer confusion. They continue to challenge the use of neon colours, boarders, website layout etc and are pushing the passing off claim based on 10 years goodwill. Direct quote “We do not accept that the use of neon colours best represents the party services industry”
The advice I got on passing off was: 'If they released this new website in January 2024 and did not predominately use these branding and design elements such as neon boxes etc prior to switching to the new design, it is unlikely they have accumulated significant goodwill associated with those items or designs within a mere 4-5 month period. This is generally established in 5 years of use within a niche market. It would be very difficult for them to claim 10 years goodwill for generic branding elements or design structure they have just released, especially a company of their size, they turn over 1m a year, its not like BMW releasing a new car they have heavily marketed in a short space of time, that the average person would recognise straight away as a BMW.
Also, with both website designs being relatively new, it's improbable that there's adequate evidence of customer confusion that is attributable to either design. Without such evidence, a claim of 'passing off' is substantially weakened.'
The legal advice I've received is clear, and I'm confident in my position. However, the constant legal threats are stressful and costly during this crucial startup phase. They've now escalated claiming the next communication will be from their solicitors.
My solicitor advises against dismissing their communications, as the court might view this negatively. However, continuing to engage is a significant drain on resources, 3 cease and desists emails in 4 weeks.
However, I refuse to be bullied and I have set out my position twice, so I’m after general guidance on how to proceed, can I just say ‘Take me to court’ and then ignore them until they do?
Sorry if the post is long, and thanks in advance
They revamped their website on January 1st, switching to a brand-new colour scheme and incorporating neon borders and elements for the first time. My website, which I launched on January 3rd, was already in development from October/November with a neon colour scheme—a choice I independently made and can prove with metadata from November screenshots.
Two weeks after I started my Google ads, I received a cease-and-desist email. It accused me of copyright infringement over stock images and simple photo enhancements from Canva, and of mimicking their neon colour branding and borders, which I also sourced from Canva.
The email further accused me of "passing off"—they claimed a customer mistook my website for theirs. They cited over ten years of goodwill and gave me seven days to comply with their demands or after getting legal they are ready to launch legal action.
I responded by disputing their claims. I explained that the images on my site are either my own or legally obtained stock images enhanced with Canva, under a Pro license. Regarding the colour scheme, I highlighted that neon colours are popular in our industry, chosen for their relevance to party and entertainment services, and not unique to any one brand.
Despite their persistent claims, they've cooled off on the copyright issues and haven’t provided evidence of the customer confusion. They continue to challenge the use of neon colours, boarders, website layout etc and are pushing the passing off claim based on 10 years goodwill. Direct quote “We do not accept that the use of neon colours best represents the party services industry”
The advice I got on passing off was: 'If they released this new website in January 2024 and did not predominately use these branding and design elements such as neon boxes etc prior to switching to the new design, it is unlikely they have accumulated significant goodwill associated with those items or designs within a mere 4-5 month period. This is generally established in 5 years of use within a niche market. It would be very difficult for them to claim 10 years goodwill for generic branding elements or design structure they have just released, especially a company of their size, they turn over 1m a year, its not like BMW releasing a new car they have heavily marketed in a short space of time, that the average person would recognise straight away as a BMW.
Also, with both website designs being relatively new, it's improbable that there's adequate evidence of customer confusion that is attributable to either design. Without such evidence, a claim of 'passing off' is substantially weakened.'
The legal advice I've received is clear, and I'm confident in my position. However, the constant legal threats are stressful and costly during this crucial startup phase. They've now escalated claiming the next communication will be from their solicitors.
My solicitor advises against dismissing their communications, as the court might view this negatively. However, continuing to engage is a significant drain on resources, 3 cease and desists emails in 4 weeks.
However, I refuse to be bullied and I have set out my position twice, so I’m after general guidance on how to proceed, can I just say ‘Take me to court’ and then ignore them until they do?
Sorry if the post is long, and thanks in advance
