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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?

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    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. – chepner Mar 30 '17 at 11:50
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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.

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    At 0330hrs, watching the local creek rise (www.FloodWatch.com.au), I was unable to be as eloquent as you :o) – Steve Mar 29 '17 at 18:38
  • @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 Mar 29 '17 at 18:45
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    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. – Stephen Ostermiller Mar 29 '17 at 21:02
  • @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 Mar 30 '17 at 1:56
  • @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 Mar 30 '17 at 3:30
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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.

  • The GPL does not make trademark considerations go away. The trademark is on the look, not on the copyrightable materials that implement the look. – bmargulies Mar 29 '17 at 21:58
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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.

  • Nicely done! Cheers!! – closetnoc Mar 30 '17 at 3:37
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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.

  • Turn-about is fair play! (That's better...) – closetnoc Mar 29 '17 at 19:19
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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.

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Of course not.

If you bought the theme from Themeforest (and from any other ThemeForest), you have the licence to use that theme for your own use and do whatever you want with that. If you want to create 2000 mirror webpages with that particular websites and you bought that licence, you have the rights to do that without risking anything.

Also, nobody is going to sue you or blame you that you "stole" the theme from a competitor. You said it by yourself that this particular WP theme has been sold more than 30k.

However, the only way to have a problem is only if your competitor has a customised theme. In that case, the legal rights are owned by him and his developers for the "customised" part. Stealing his custom code/scripts/etc. can be a problem Of course, it is so so so so so rare to have a sue or legal notice. We are talking about the internet here and globally legal notices. In my opinion, your competitor is going to pay by far more rather than the "potential" fine from the court of law that you are going to be prosecuted. Come on.

The only problem is that you want to trick your visitors and gain reputation via your competitor's reputation.
No fair, but everything is acceptable on an open market. There is no ideal on the internet and even more on competitions.

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    "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 – tallus Mar 29 '17 at 22:46
  • @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 Mar 29 '17 at 23:14
  • @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 Mar 29 '17 at 23:22
  • @tallus In that case, don't scare him with examples with 10 lawyers on the board staff. – Greg Mar 29 '17 at 23:25
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    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. – closetnoc Mar 30 '17 at 3:43
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I want to purchase a WordPress theme...it is used by a competitor. Can they make a formal complaint that I have copied their site...I would want to modify it to look a little different, but it would appear very similar initially...

Here's what I recommend. Since you plan to nearly duplicate the theme of a competitor, you should turn your computer into your own private web server and run anything on that.

The advantage here is the server is only accessible by your computer and no internet connection is required by you to access it. Easiest way to get one is to download apache and set it up.

If that does not work, then rent an online server and contact the administrator to set it up so that computers from your network are the only ones allowed in (while other users will get some sort of access denied message). This will be a bit easier if you go for a virtual private server or dedicated server but those options may be more expensive.

While my idea might seem somewhat sneaky, you're actually doing two sets of people a favor. you're doing guests a favor by not making them see undesired webpages when they try to access your site at the same time you're making one of many updates. You're also doing your competitor a favor by not making consistant minor tweaks to the site where most of those changes could result in duplicate pages of that of the competitor.

When you are editing, you want to modify it to look different to the point where there's no chance you're copying your competitor. I mean if you want to use a similar set of colors, that's no problem. Heck, nearly every quality website I see has a basic color theme of using black text on a white background.

I think the most amount of copying you can do without getting in trouble is about 10 to 25%, but what I strongly recommend is to use completely different text and completely different user interface layout. For example, if your competitor has a series of buttons on the left and talks about boats, you can make a site with a series of buttons with bigger spacing on the right that talks about cats.

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If your competitor is worried about other sites looking like theirs then they should not have bought and used a barely customised , widely used wordpress theme.

Like the other answers here have mentioned: Just don't copy content from your competitor and don't customise the theme in exactly the same way they have (e.g. if they have changed the background colour to light blue: don't pick the same background colour as them!)

Imagine if you both happened to hire the same web designer to do your website: Some of the code on your sites will be exactly the same as the web designer probably re-uses their code between clients to avoid reinventing the wheel. That does not mean your competitor can point at your code and say you stole off them: it means they should have had a better contract with the web designer that meant they themselves own the code used on their page and that the web designer cannot re-use it for other clients at all.

Buying a wordpress theme is exactly the same as that budget web designer: you are buying the code for your own use but you cannot stop someone else from also buying that exact same code (buying that same theme).

Just because they bought the theme 'first' does not mean they can prevent you from also using the theme.

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