The information contained on this page constitutes general information only and is not intended to be legal advice. No information contained on this page or communicated through this page is intended to create a lawyer-client relationship. Before relying on the contents of this page, please obtain professional advice relevant to your particular circumstances.
1. Intellectual property
a. What is intellectual property?
Intellectual property refers to creations of the mind. Intellectual property rights include copyrights, trademarks, patents, and registered designs. Generally, owners of intellectual property may enforce their intellectual property rights against anyone who uses their intellectual property without their authorisation. A related right which is recognised in some countries is “personality rights”, which allows individuals to take action against unauthorised use of their name, image and other aspects of their individual identity.
a. What is copyright?
Copyright protects the expression of ideas (and not simply ideas themselves). The type of works protected under copyright includes literary works like novels and poems, musical works like music scores, artistic works like drawings, designs, photographs and sculptures, as well as films and sound recordings.
The owner of a copyrighted work is granted a bundle of exclusive rights, including the right to reproduce, publish, publicly perform, communicate to the public, and adapt the copyrighted work. The duration of copyright protection differs in different countries and depends on the type of work being protected. After copyright protection expires, the work falls into the public domain and is free for use by all.
b. Is something still protected by copyright if it doesn't bear a copyright notice?
Yes. A copyright notice – typically consisting of the symbol “©” or the word “copyright” – may be placed on a work and is meant to inform others of copyright ownership, but is not required. If you don’t see a copyright notice on a work, this does not necessarily mean you are free to use it without permission from the copyright owner.
c. If something was created overseas, does it still have copyright protection in Singapore?
Yes. There are agreements between countries under which each country gives similar rights and privileges to nationals of other countries as it would its own nationals. Hence, for example, a photograph that was created in the USA would also enjoy copyright protection in Singapore.
d. What is copyright infringement?
Under Singapore laws, you may infringe copyright if you (without permission from the copyright owner) do or authorise the doing of any act in the bundle of exclusive rights granted to the copyright owner, such as reproducing the work, adapting it, or performing the work in public. You may also infringe copyright by selling or importing for sale an article which you know or ought to know infringes copyright.
Copyright infringement may result in both civil and criminal liability. Criminal liability is limited to certain types of infringement, such as when infringing copies of works are commercially exploited. Some general examples of copyright infringement include :
- Using someone else’s photos (such as photos from online fashion stores, social media accounts, or another Carousell user’s account) on your listing, even if the photo shows the genuine article being sold;
- Making or selling copies of books, movies, music and other media;
- Printing someone else’s drawings or designs (such as cartoon characters, artworks, movie posters) onto products (such as clothing, stickers, prints), and selling them;
- Copying content such as product or brand descriptions from other sources including from other Carousell users’ listings.
e. Can I avoid copyright infringement by citing and crediting the source of the copyright work?
No. Attributing the source of the copyright work alone does not mean that you do not infringe the owner’s copyright.
f. If I use material that is publicly accessible, is it still copyright infringement?
The fact that material is published and accessible to the public does not necessarily mean that it is not protected by copyright, and unauthorised use could still make you liable for copyright infringement. As such, using an image you found on Google or on another trader’s website may still be copyright infringement, unless the copyright owner has given you permission or the material is, for other reasons, not protected by copyright (for example, because copyright has expired). It is best practice to contact the copyright owner to ask for permission before using the material.
g. Do I infringe copyright by reselling a copyrighted work?
Under Singapore laws, if an article has been made with the copyright owner’s permission, then reselling that article is not copyright infringement. For example, if you have bought an original painting from an artist, it would not be copyright infringement for you to resell the painting to someone else.
Please note however that simply buying an authorised article does not give you complete freedom to do what you wish with the article. It would generally still be copyright infringement for you to do the acts in the bundle of exclusive rights granted to the copyright owner, such as copying the painting or printing it onto a T-shirt.
h. Are there any defences to copyright infringement?
Most copyright laws around the world do provide for some defences to copyright infringement. One key defence found in Singapore’s Copyright Act is that of “fair dealing” – in other words, you are saying that your use of the copyrighted work was “fair” and should be excused, even though you did not have permission from the copyright owner.
There is no clear answer to what use will be considered “fair dealing”, and each situation will depend on its facts. As a guide, some factors that are taken into account when considering whether an act may be protected by the “fair dealing” defence include:
- The purpose and character of the dealing (for example, was it of a commercial nature or was it for non-profit educational purposes?);
- The nature of the work;
- How much was copied in relation to the whole work (in terms of quantity and quality);
- The effect of the dealing upon the potential market for, or value of, the work;
- The possibility of obtaining the work within a reasonable time at an ordinary commercial price.
3. Trade Marks
a. What is a trade mark?
A trade mark is used by a trader to distinguish its goods or services from those of other traders. Therefore, its role is to identify the trade source of those goods or services.
Trade marks may take the form of names, logos, letters, or shapes, and may also be in the form of sounds or colours. Trade marks may or may not be registered. A trade mark owner generally has the right to prevent others from using his trade mark, or a mark that is confusingly similar to his own, without his permission. Unlike copyright, a trade mark owner may potentially enjoy indefinite protection of his trade marks.
b. Is something still protected as a trade mark if it doesn’t bear a ® or ™ symbol?
Protection for a trade mark does not depend on whether it bears the ® or ™ symbols. The ® symbol may be used to indicate that a trade mark is registered. However, it is not a requirement to use the ® symbol, so a trade mark that is not used with the ® symbol could still be one that is protected as a registered trade mark. The ™ symbol may be used to indicate that the mark is being used by the trader as a trade mark. However, it does not provide any information on whether the mark is registered or protected.
c. What is trade mark infringement?
Under Singapore laws, you may infringe a registered trade mark if you use an identical or confusingly similar trade mark to that owned by the trade mark owner, in relation to identical/similar goods or services, in the course of trade.
Unauthorised use of registered trade marks may also result in criminal liability. Offences include:
- Counterfeiting a registered trade mark;
- Falsely applying a registered trade mark to goods or services;
- Making or possessing articles specifically designed or adapted for making copies of a registered trade mark, where the person knows or has reason to believe that the article is to be used to counterfeit or falsely apply registered trade marks; and
- Importing or selling goods with falsely applied trade marks.
Even if a trade mark is not registered in Singapore, the trade mark owner may still be able to take action against unauthorised use of the trade mark, for example, on the basis of passing off. Some general examples in which you may be liable for unauthorised trade mark use are:
- Making and selling items bearing trade marks that are very similar to other traders’ trade marks or brand names, which results in customers mistakenly thinking your items are from those other traders;
- Using another trader’s trade mark or brand name on a product that is not actually produced by that trader, which results in customers mistakenly thinking that the product is that trader’s product.
d. Do I infringe a registered trade mark by reselling a genuine product bearing the registered trade mark?
The answer to this question differs in different countries. Under Singapore laws, if goods have been put on the market (whether in Singapore or outside Singapore) with the trade mark owner’s permission, then reselling such goods generally does not constitute trade mark infringement. For example, if you have bought an original T-shirt bearing the Brand X trade mark, it would not be trade mark infringement for you to resell the T-shirt to someone else in Singapore.
e. Are there any defences to trade mark infringement?
Most trade mark laws around the world provide for some defences to trade mark infringement. There are a range of defences and exceptions available under Singapore’s Trade Marks Act. One exception is that a person does not infringe a registered trade mark if he uses the trade mark to indicate a characteristic of the goods or services provided, in accordance with honest practices. For example, if you advertise that you are selling a “genuine Brand X computer” (and it truly is a genuine product), you would be using the trade mark to indicate a characteristic of the goods.
f. Can I use someone else’s trade mark in the description of the product I am selling on Carousell?
If the product you are selling is a genuine product of the trade mark owner, you can use the trade mark to describe it. Also, under Singapore laws, it is not trade mark infringement if your use of the trade mark constitutes fair use in comparative commercial advertising. In other words, it may be acceptable to use another trader’s registered trade mark to compare your product with that trader’s product. However, much care should be taken to ensure that the comparison is a fair and accurate one, and that consumers are not misled. Also, please note that laws on comparative advertising may differ in different countries.
If you are unsure of whether the product you are selling is a genuine product of the trade mark owner, you should not use the trade mark to describe it. Such use of the trade mark may be trade mark infringement, even if you state on your listing that you are unsure if it is a genuine product.
4. Other Frequently Asked Questions
a. Can I avoid infringement by stating clearly on my listing that the product is a replica or imitation/not authentic?
No. Simply disclosing that your product is not genuine does not absolve you from intellectual property infringement or offences relating to counterfeiting.
b. How do I create listings that do not infringe others’ intellectual property rights?
It is always best to familiarise yourself with what intellectual property law protects and what it doesn’t protect, so that you can gain a better understanding of both your own rights, as well as the rights of others whose material you might be intending to use.
The safest way to create a listing is not to take or copy content belonging to someone else without permission from the content owner. Bear in mind that it is generally not necessary for rights owners to display explicit notices that their material is protected, and it is not a defence for you to say you were not aware or did not check.
When considering whether to list an item that is not original to you, you should also consider:
- Is it a genuine product, or could it possibly be an unauthorised copy or counterfeit?
- Did the original seller of the product restrict your use or further sale of the product? For example, many software products only include a limited number of licences to use the software and require you to use verification keys accordingly.
You may believe that some defences apply to your use of someone else’s content or sale of someone else’s products. However, do remember that the application of legal defences depends on various legal considerations, and the exact facts of each case. If you are not sure whether you're infringing someone else’s intellectual property rights, or if you receive a notice about a potential infringement, please consider seeking professional legal advice.
c. I think a Carousell user is infringing my intellectual property rights. How do I report this to Carousell?
Encountering infringement of your intellectual property rights is never a pleasant thing, and we respect the intellectual property rights of our Carousellers. If you suspect that your intellectual property rights have been infringed, here's what you can do:
Report the infringement to Carousell - You may wish to report an infringement of your rights to us, by following the detailed steps at How can I report an infringement of my rights?
d. I am the rights owner or I am an agent acting on behalf of a brand owner, and I wish to report an intellectual property infringement. How do I do so?
For agents validly acting on behalf of a brand owner, you may wish to report an infringement of the brand owner’s rights directly to us by following the detailed steps at How can I report an infringement of my rights?
e. Someone has reported to Carousell that my listing infringes their intellectual property rights, but I disagree or require further information. What should I do?
If you, in good faith, believe that material you uploaded was removed, or access to it was disabled, as a result of mistake or misidentification, or that such material does not infringe the intellectual property rights of any other party or if you need further information about the notice of infringement, you may send an email to contact the party at the contact information provided in the notice of infringement. If a mistake or misidentification has been made by the rights owner, we will require an email from the rights owner, informing Carousell that they wish to retract their report.
When sending in an email to the rights owner, be sure to include as many details as possible so that they can understand the situation. Some things that you should include are:
o Your username
o Your email address
o Your organisation or client (if applicable)
o Your job title (if applicable)
Details of the content that was removed or access to which was disabled
o Description of the content
o Details of the notice of infringement
f. I have made a mistake or error in my intellectual property infringement report. What should I do?
You may reply in the same email thread, with details of the corrections required.