Software Guy Brokers Ltd v Hardy, 2004 BCSC 82

Key Principle:

To successfully advance a claim of passing-off, one party must show that, by its name or branding, another party has, or is likely to, deceive or mislead the public into thinking that its business is related to that of the first party.

Only original work is protected by copyright. Thus, one person may not sue another for appropriating work that he, himself, copied from another source.

Summary:

The Situation:

You sell business software online. In drafting your website, simplesoftware.com, you borrowed generic descriptions and other text from an outside source. Recently, you discovered another website that also sells business software, cheapsoftware.com. To your dismay, you notice that the website incorporates large sections of text from your website. Worried that customers might mistakenly infer a connection between the two websites, you consider taking legal action

The Conclusion:

Since the only common element between the name of your website and that of the rival business is the generic term “software,” you could not successfully sue cheapsoftware.com for passing off. Although cheapsoftware.com has copied significant portions of text from your website, you could not successfully sue its proprietor for copyright infringement since the text is not original: you borrowed it from an outside source. Only original work is protected by copyright.