Is it legally problematic to use the same WordPress theme as my competitor?

Question

I want to purchase a WordPress theme from ThemeForest, however, it is used by a competitor.

Can they make a formal complaint that I have copied their site even though the theme is publically available and is one of the most popular themes sold on ThemeForest?

I would want to modify it to look a little different, but it would appear very similar initially as I've not worked out the best way to modify the templates yet and my competitor has used this theme without making any major changes/adjustments. Note the template has been sold over 30,000 times on ThemeForest.

Would I be right in saying that as they do not own the intelluctual rights, this wouldn't be a problem to do?

Solution 1

Copyright applies to content. So copyright would not apply here since the content is uniquely yours (assumption) and that the theme is available for use by many.

Trademarks should be registered (generally). Unless you are using a trademark that is not yours, this does not apply.

However, too much similarity may still be considered trade infringement without a specific trademark infringement. All it has to do is be reasonably confusing to customers. As long as that argument can be made and agreed with, you can be in trouble. Keep in mind that an argument only has to sound reasonable to an unreasonable judge to work against you.

My advice is to evaluate how you distinguish yourself from your competitors in regard to content, look and feel, and usability. Make sure that no reasonable argument that your site is too similar to another can be made.

Solution 2

Just adding to closetnoc's answer.

Wordpress is released with GPLv2 (or later) from the free software foundation. Part of this license outlines requirements for derivative works, such as plugins or themes. Derivatives of WordPress code inherit the GPL license.

Which means that it's free full stop! (Developers only charge you for access, automatic update and support. Not the theme or plugin.)

Even the developer of the theme cannot sue you if you decided to take it and sell it off as your own as an example. (I'm not encouraging taking other people's hard work and passing it as your own, just stating that it's allowed within the license.)

Even if it's customised there'll still be no problem using it exactly the same because of the licence.

With that out of the way, imitating a brand is something different and that may have legal repercussions as suggested above by closetnoc.

Using similar colours on the logo, same text on product pages will look like you're using the brand to pass as your own.

Solution 3

Would I be right in saying that as they do not own the intelluctual rights this wouldn't be a problem to do.

No. Copyright is far from the only applicable law here. For instance in Brookfield Communications, Inc. v. West Coast Entertainment Corp the use of a competitors domain name in meta tags was found to be a trademark infringement. More directly this page http://clearskylaw.com/trade-dress-law-protects-look-feel-websites-digital-layouts/ claims that the decision in Millenium Labs v. Ameritox establishes grounds for a claim of infringement of trade dress on the basis of copying a web sites look and feel. The fact that this theme is widely used might mean the the claimed trade dress is not inherently distinctive but its not anything I would want to rely on.

Solution 4

You and your competitor are using someone else's product for the product's intended use. You are both allowed to use the product in the same way.

What matters are the things that aren't part of the product itself:

• Did you write similar content?
• Are you using the same custom scripts that weren't part of the theme?
• Is the design similar enough that a non-designer would say that they are effectively the same?

I'm not a lawyer, but if you can answer 'no' to these questions, then you should be okay.

Solution 5

I am no lawyer, but as long as you are not trying to confuse people by looking like a 'houshold name' brand, given that the theme is readily available there should be no issue.

Make your site similar by all means, but also make it clearly unique and you should be OK.

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Comments

[chepner]

I would think you'd want to differentiate yourself from your competitor as much as possible, not just to avoid complaints from your competitor but to avoid customers mistaking your competitor's website for your own.

[Steve]

At 0330hrs, watching the local creek rise (www.FloodWatch.com.au), I was unable to be as eloquent as you :o)

[closetnoc]

@Steve Thanks! I should have been a lawyer... except that so many lawyers suck. A few exceptions. General Dan. Yes. A real Army General. He cracked me up and often put both feet somewhere delicate. Thankfully, no grenades were hurt during litigation. Cheers Mate!!

[closetnoc]

Turn-about is fair play! (That's better...)

[Stephen Ostermiller]

Trademarks don't need to be registered. Unregistered trademarks are protected under common law trademark rights. It would be easier to get sued for using a registered trademark, but it would be risky to use your competitor's logo even it it were not registered. I suppose that could also apply to a website's look and feel, but I think a court case based on common law trademark of a non-unique look and feel would be pretty weak.

[managedheap84]

The GPL does not make trademark considerations go away. The trademark is on the look, not on the copyrightable materials that implement the look.

[Vosem Media]

"No fair, but everything is acceptable on an open market" not even remotely true. See Grotrian v Steinway & Sons, Playboy Enterprises, Inc. v. Netscape Communications Corp, Brookfield Communications, Inc. v. West Coast Entertainment Corp, the JIF lemon case etc

[Greg]

@tallus You are talking about millions here. this is not the case. the guy who open question I am sure that 10k monthly visitors is the best that can achieve and he should be proud of it. The case that you are talking about it something completely different. Except if his competitor is Apple, Microsoft or a colossus on the market. This is another case. But even then, they can not blame him for "copy" their WP theme.. that makes me laugh. Really.

[Greg]

@tallus but I am sure that his competitor or his traffic would be something small.. It is obvious by miles away. If we were talking about big and really big 6 at-least digit number per month, dedicated lawyers can fix every issue here.

[Greg]

@tallus In that case, don't scare him with examples with 10 lawyers on the board staff.

[Greg]

@tallus And really, do u know how much money needs for an international sue and prosecution? And all of these, If, and I say a very big IF, you can find the real legal entity / "owner" / legal ownership of the particular domain.

[closetnoc]

@StephenOstermiller One example would be colors. Suppose you created a cola that was blue or red and was confusing consumers that wanted Coca Cola or Pepsi. In some respect, that can be easily argued. You are right about trademarks, however, they should be registered so that it can properly be defended. I won a case where the trademark office decided that a customer of mine had violated a trademark. I fought the decision and won based upon the registration of the trademarks. I got it done in just a few weeks where the case had gone on for months prior. It becomes a technical matter.

[closetnoc]

@StephenOstermiller BTW- When I left the IT world, a few years later, I was the production assistant and supply chain manager in a large steel fabrication plant (God what a fun job!) and we had registered colors that could not legally be used for any product other than for the intended customer. Sunbelt Orange, John Deere Green, and John Deere Yellow come to mind quickly. So look and feel is huge.

[closetnoc]

Nicely done! Cheers!!

[closetnoc]

For the record, in civil court only a filing is necessary. That costs almost nothing. It would cost $10,000 absolute minimum to defend. I should know. I have been there with drive-by suits as a landlord. This applies to any federal civil complaint. If prima facie is established, you are peeling off another $10,000. Not something someone wants to get into.

[TripeHound]

I think term you want is Passing Off.

[closetnoc]

@TripeHound Not a term we use here... still it is good to know. I am not sure we have an equivalent exactly. But then again, it has so long since I dealt with any trademark issues. Thanks! Cheers!!

[Vosem Media]

@greg its case law, it applies to every body, not just people who can afford lawyers. Did you look at the link I posted in my answer. Its not directed at the Apples and Microsoft of this world, they employ their own lawyers, they market themselves to small businesses and the OP's competitor could find that link as easily as I did.

[Erwin Bolwidt]

There is definitely copyright on a theme (I'm not sure what you mean with "copyright applies to content" - only if you consider a theme to be content). However the copyright for the theme rests with the creator of the theme, not with the OP's competitor who just bought a license to the theme, just like the OP wants to.

[closetnoc]

@ErwinBolwidt I realize that Thank You. Copyright actually applies to a work. I was simplifying the matter for clarity. Cheers!!