24 min article

Intellectual Property Policy

This Intellectual Property Policy is effective from 28 April 2020.

1.

General  

1.1This intellectual property policy (“Intellectual Property Policy”) describes (a) ways in which you can protect your intellectual property; (b) ways in which you can ensure you are not violating other people’s intellectual property; and (c) how we handle instances or allegations of intellectual property infringement.

1.2For the purposes of this Intellectual Property Policy, intellectual property will include all trademarks, service marks, trade names, trade dress, logos, copyrights, rights of authorship, inventions, mask work rights, moral rights, patents, rights of inventorship, all applications, registrations and renewals in connection with any of the above, database rights, know-how, trade secrets, formulas, pattern, method, technique, rights of publicity, privacy and/or defamation, designs and all other intellectual and industrial property rights related thereto anywhere in the world, in each case whether or not they are registered and including pending applications for such rights and rights to file applications for such registrations.

1.3You must read this Intellectual Property Policy in conjunction with the Terms of Use and the Policies. For the purposes of this Intellectual Property Policy, unless defined hereunder, defined terms have the meaning ascribed to them in the Terms of Use.

1.4It is your responsibility to familiarize yourself with this Intellectual Property Policy and contact us if you have any questions or require any clarifications. The Intellectual Property Policy is not meant to provide any legal advice in relation to your or someone else’s intellectual property. If you have any issues regarding intellectual property, you should consult a qualified lawyer.

2.

Copyright  

2.1

Meaning of Copyright

A copyright generally consists of the following classes of original works: (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recordings. Original works of authorship include pictures, photos, books, videos, songs, video games, paintings, software products and source code. To receive copyright protection, a work of authorship must usually have some amount of original content or creativity. If you are the author of an original work, then you typically own the copyright in that work. Copyright protection usually arises at the moment of creation of a work. Some jurisdictions permit the author of an original work to register their copyright.

2.2

Copyright Infringement

(a)

Copyright laws across jurisdictions prohibit the unauthorized copying or use of original works.

(b)

In case you post, display or use any third party’s copyright protected material in a manner that you are not permitted or licensed to, or does not constitute fair use, your post will likely result in copyright infringement.

(c)

Do not post, upload or share images or photos from the Internet without checking if sharing them is permissible under their relevant licensing terms.

2.3

Copyright ownership and use

The author of an original work typically owns the copyright in that work. For example, if you took a photo of your Product, or commissioned someone else to take a photo on your behalf, for valuable consideration, you may be considered to be the owner of copyright in that photo. Accordingly, you can use that photo on your Product detail page to provide additional details about your Product to other Users. In case you are using a photo owned by a third party, you should take that person’s permission prior to using that photo on your Product detail page.

3.

Trademark  

3.1

Meaning of Trademark

(a)

A trademark is a mark that is capable of distinguishing goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colors. It usually comprises of a word, picture, symbol or logo.

(b)

A trademark owner usually protects a trademark by registering it with a country-specific trademark office. For example, in Switzerland, protection may be obtained by registering with the Swiss Federal Institute for Intellectual Property and in India, a trademark may be registered under the Trademarks Act, 1999 at the Trademarks Registry. However, unregistered trademarks also have protection.

(c)

Trademark protection is usually territorial by nature, i.e., the geographic scope of protection for trademarks is limited and depends on the place of registration.

(d)

Trademark law aims to enable business owners to distinguish their goods and services from those of others. Additionally, it acts as an indicator of the source of the product or service, and, over time, an indicator of quality.

3.2

Trademark Infringement

Typically, a seller can use someone else’s trademark in the following circumstances:

(a)

When selling original and genuine goods, a seller may use the corresponding trademarked name to list those goods;

(b)

When using a trademarked word in its ordinary dictionary meaning; and

(c)

When making truthful statements that a Product is compatible with a trademarked product. For example, if a seller offers and states that a phone cover that is compatible with a certain trademarked electronic product, then it will not constitute trademark infringement as long as the statement is true and not confusing.

3.3

You should ensure that the Products, Services and/or User Content being provided by you on the Platform do not infringe trademarks of any third party. When you decide to offer any Products and/or Services on the Platform, you should ensure the following:

(a)

Offer Products and/or Services that are genuine and original;

(b)

Not offer for sale any counterfeit Products and/or Services;

(c)

Ensure that the description of the Products and/or Services is accurate and such description is not, and is likely to not create any confusion regarding, among other things, the Products’ and/or Services’ origin, source, nature, manufacturer, endorsement, affiliation or association;

(d)

Not use any trademarks to take unfair advantage of any established brand to the detriment of the trademark or against the reputation of the trademark;

(e)

Not publish Product and/or Service descriptions which may be misleading or misrepresentative of the listed Products and/or Services; and

(f)

Not advertise and market Products and/or Services using trademarks or marks that are deceptively similar to other trademarks.

4.

Patent  

4.1

Meaning of Patent

(a)

A patent is a statutory right for an invention granted for a limited period of time to the patentee by a Government, in exchange of full disclosure of his or her invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his or her consent.

(b)

Patent protection is usually territorial in nature and is effective in the territory where the patent is registered.

4.2

Patent infringement

It is your responsibility to ensure that you do not offer for sale or sell any patented Product and/or Service on the Platform for which you don’t own the patent or have not obtained a valid license from the patent owner.

5.

Designs  

5.1

Meaning of Designs

A design grants protection to the features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article by any industrial process or means. Designs are registered to ensure that the artisan, creator or originator of a design having an aesthetic look does not deprive them of their bona fide reward by others applying it to their goods without the consent of such artisan, creator or originator.

5.2

Design infringement

(a)

You must ensure that you do not offer for sale or sell any Product with a registered design on the Platform for which you don’t own the design or have not obtained a valid license from the design owner.

(b)

Listing, offering to sell or selling of Products with design piracy is prohibited on the Platform.

6.

Trepup intellectual property  

6.1

All intellectual property rights in the Platform, its source code, interface, listings, designs, Trepup’s trademarks, logos, service marks, trade names, trade dress and any other intellectual property are owned by Trepup and are its valuable assets. As a general rule, you are not permitted to use any intellectual property owned by Trepup without the prior permission or authorization of Trepup.

6.2

Where applicable, by using, in whole or in part, any intellectual property that is owned by Trepup, you are acknowledging that Trepup is the sole owner of the intellectual property and that you will not interfere with Trepup’s rights in the intellectual property, including challenging Trepup’s use, registration of, or application to register such intellectual property. You will only use any intellectual property used by Trepup in accordance with the terms of the license or authorization granted by Trepup to you and shall not infringe any intellectual property rights of Trepup in any manner whatsoever.

6.3

Further, you agree to not harm, misuse or bring into disrepute any intellectual property belonging to Trepup. The goodwill derived from using any intellectual property belonging to Trepup exclusively inures to the benefit of, and belongs to, Trepup. Refer to the Brand Guidelines for more details.

7.

Your obligations  

7.1

You will not infringe the intellectual property rights of Trepup or any third party while accessing or using the Platform and/or Trepup Services.

7.2

You must ensure that you have the authority and right to upload any User Content including pictures, descriptions, brand names, trademarks, designs and videos before uploading or sharing such User Content on the Platform. It is your responsibility to ensure that all such User Content is accurate and does not mislead other Users of the Platform.

7.3

In case you are not certain whether any of your Products, Services or User Content violate any third-party intellectual property rights, we recommend that you discuss your rights with a qualified lawyer before listing, uploading or sharing any such Product, Service or User Content on the Platform.

8.

Intellectual property infringement  

8.1

All Users are expected to access or use the Platform and/or the Trepup Services in compliance with applicable law as well as the Policies. Trepup takes claims of intellectual property infringement very seriously and will undertake all actions against you as it may deem necessary even if you were unknowingly infringing any intellectual property rights.

8.2

Intellectual property infringement by you

Trepup, may at its sole discretion, review the Products, Services and/or User Content offered or posted by you on the Platform. If Trepup believes that any of the Products, Services and/or User Content infringe intellectual property rights of any third parties or if Trepup receives a notice from any third party alleging that your Product, Service and/or User Content is infringing their rights, then Trepup may do any or all of the following:

(a)

Send you an email on your registered email address notifying you of such infringement;

(b)

Take down or delete the relevant Product, Service and/or User Content from the Platform;

(c)

Suspend or terminate your User Account or institute posting restrictions;

(d)

Notify the third party whose rights we believe you are infringing;

(e)

Assist such third parties with any legal proceedings that they may institute against you;

(f)

Notify other Users, your customers or vendors of such infringement; and

(g)

Notify any Governmental authority of such infringement.

8.3

Erroneous notification

If you have received a notification from Trepup or your User Account has been suspended or terminated pursuant to an intellectual property infringement and you believe that your Products and/or Services are not infringing any intellectual property rights of any third parties, you may write to us with the following information:

(a)

Details of the notification received from Trepup;

(b)

Details regarding the infringing Product, Service and/or User Content, as may be applicable;

(c)

Documentation (such as invoices or procurement documents) proving the authenticity of your Products, Services and/or User Content, as may be applicable;

(d)

An authorization letter, if applicable, from third parties who own the Products and/or Services; and

(e)

Information that may assist in establishing that the Products, Services and/or User Content is not infringing any intellectual property rights of any third parties.

8.4

Suspension of your User Account

If your User Account has been suspended due to a claim of infringement of intellectual property, we may reinstate your User Account after twenty-one (21) calendar days of suspension, if:

(a)

A final and binding court order has been issued in your favor by a court of competent jurisdiction in relation to the relevant Product, Service and/or User Content; or

(b)

No court order has been received by us asking us to restrict access to your Product, Service and/or User Content within twenty-one (21) calendar days of receiving a notice in this regard; or

(c)

Subject to applicable law, you have been able to establish beyond reasonable doubt that your Product, Service and/or User Content does not infringe intellectual property rights of third parties.

8.5

In addition to Section 8.4, you will, before we reinstate your User Account, submit an undertaking to Trepup specifying the following:

(a)

The steps you have taken to ensure that you are no longer infringing someone else’s intellectual property;

(b)

The steps you will take to avoid infringement in the future or ensure that such claims do not arise; and

(c)

Any other pertinent information.

8.6

Indemnity

You agree to indemnify, defend and hold Trepup, its shareholders, management, employees, agents, representatives, successors, and assigns harmless against any losses which arise out of, result from, or are connected with, any claims of infringement of any intellectual property rights of any third party by you while accessing or using the Platform and/or the Trepup Services.

9.

Notice from third parties in relation to infringement of intellectual property rights  

9.1

If you believe any other User of the Platform or any Product, Service and/or User Content is infringing any intellectual property rights owned by you, you may send a written notice of such infringement to us at the address given below.

9.2

A false notice or counter-notice may give rise to personal liability. You may therefore want to seek the advice of legal counsel before submitting a notice or a counter-notice.

9.3

Your notice must provide the following information:

(a)

A description of the intellectual property right that you believe has been infringed;

(b)

A description of the relevant Product, Service and/or User Content and its location on the Platform to enable us to accurately identify the infringing material;

(c)

Details of the manner in which the Product, Service and/or User Content is infringing and that such use is not covered by fair use or any other available defense;

(d)

Details of the person, if known, who is responsible for uploading or sharing the infringing Product, Service and/or User Content;

(e)

An undertaking that the information in your notice is accurate and that you are the owner of the intellectual property at issue or are authorized to act on the intellectual property owner’s behalf;

(f)

An undertaking that you will file an infringement suit in the competent court against the person responsible for uploading the infringing copy and produce the orders of the competent court having jurisdiction within a period of twenty-one (21) calendar days from the receipt of the notice by us; and

(g)

Your name, address, telephone number and email address.

9.4

We only investigate notices or claims of infringement of intellectual property rights if such notices are received from the owner of the intellectual property or from a duly authorized licensee.

9.5

If you believe that the notice received from any third party alleging infringement of their intellectual property is baseless or erroneous, you may send a counter-notice containing the following information to us:

(a)

Details of the notice received from the third party;

(b)

A pointwise reply to each of the claims of the third party;

(c)

Proof of ownership of your intellectual property; and

(d)

Your name, address, telephone number and email address, and a statement that you consent to the jurisdiction of the courts from where you have received the notice and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

9.6

If a counter-notice is received by us, Trepup may send a copy of the counter-notice to the original complaining party. Unless the complainant files an action seeking a court order against the User to whom the notice was issued within twenty-one (21) calendar days of receiving a counter-notice or provides a court order to Trepup within such time period, the removed User Content may be replaced or access to it restored.

9.7

You may reach us for notice of claims of intellectual property infringement on the Platform at the following address:

Trepup.com AG Attn: Legal Affairs Dorfstrasse 16 6341 BAAR SWITZERLAND Email: legal@trepup.com
10.

Disclaimer  

10.1

This Intellectual Property Policy does not provide a comprehensive list of all acts that may infringe intellectual property of third parties. In the event an act by you may result in the infringement of intellectual property rights of any third parties, we may take any of the actions specified above, irrespective of whether your act has been specified as an infringing act.

10.2

The policy is only an illustrative list of intellectual property rights that may be available, and suggestions on ensuring that you don’t violate intellectual property of third parties while accessing or using the Platform and/or Trepup Services. There may be other forms of protected intellectual property such as industrial designs, geographical indicators and trade secrets. The Intellectual Property Policy does not provide a comprehensive list of all acts that may result in infringement of intellectual property rights of third parties. All information provided is for information purposes only and does not constitute legal advice. We do not guarantee that any of the information provided in Sections 2 to 5 above is accurate or complete.

10.3

All Users are responsible for ensuring that they have all necessary rights in relation to their User Content and that their access or use of the Platform and/or Trepup Services does not violate the intellectual property rights of third parties. Trepup shall not be liable in any manner whatsoever for any infringement of intellectual property rights of third parties by any of the Users caused pursuant to their use of the Platform and/or Trepup Services.

10.4

We only operate a Platform that connects businesses and individuals allowing them to interact in various ways including by buying and selling Products, Services and/or User Content. We do not adjudge, adjudicate or resolve any claims of intellectual property infringement. All such claims must be resolved in an appropriate forum having competence and jurisdiction on such claims. All actions taken by Trepup pursuant to this Intellectual Property Policy are to ensure smooth operations and increase the credibility of the Platform and engender trust among Users. Trepup shall not be liable in any manner whatsoever for suspending or terminating a User’s Account, or for removing listings or blocking content where it believes in good faith that any User or User Content is infringing intellectual property rights of third parties. For other information in relation to the Platform and Trepup Services, please see the Policies.

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