Craft Design - Protect it or Forget it
by ACID - Anti Copying in Design
Staying ahead in today’s competitive world is a major challenge made more difficult by the increasing threat of design theft globally. The rise in indiscriminate copying means that those within this market need to be ever more vigilant and aware of the pitfalls. Good craft design isn’t just something that miraculously appears, it usually takes investment, hard graft and creative skills that result in excellent, safe products that makes designers lead rather than follow. It can take years of sweat equity to create a brand that end users want to be associated with - if excellent design is to continue to be recognised as a key unique selling point to craft design buyers it must also represent a value in revenue income to those who create it.
Design rights subsist in almost every original, new design and increasingly companies are becoming savvy to the strengthened laws created to protect them. It’s time now to embrace those design buyers who recognise that DESIGN = VALUE to the creator/owner and provide guidelines of how not to infringe the rights of originators to those who fall by the wayside – its those that ACID wants to target.
So what can be done?
ACID’s
advice to those within the craft
industry is to understand the basics
of intellectual property rights so that
a preventative and deterrent
strategy can be created thus
ensuring better protection and full
commercial exploitation of creative
input/new designs. By creating a
safer legal framework within which
to establish sounder commercial
relationships, the arts and crafts
world can be a more profitable
place for all key players. Knowledge
is a key strength and education,
i.e. knowing and understanding
what law protects all parties, is key
to creating an effective anti copying
strategy as well as fully exploiting
and commercialising products that
are created.
What are design rights?
Get to
know the rights that protect you!
Under UK and EU law these rights
are conferred on the creation of a
new 3-dimensional design. They
can be unregistered or registered.
Unregistered or registered design
protects the appearance of a
product – this includes shape,
contours, lines, colours, texture of
the product or ornamentation. The
definition of a “product” includes
parts, get-up, symbols and
typefaces.
How can designers get design
rights?
Unregistered rights are an
automatic right. In the UK they last
for 15 years (if not exploited) or 10
years after they are made available
to the public. In the EU unregistered
community rights last only 3 years
from the date the design is first
made available to the public.
UK Registered rights can be
obtained from the UK Patent Office
(www.patent.gov.uk), and last for 25
years renewable every five years
and cost £60 per design.
A Registered Community Design is
available from OHIM (The Office for
Harmonization in the Internal
Market) and costs • 350, lasts for 25
years and offers protection in 25
countries. (www.oami.europa.eu).
However, the more designs you file
at the same time, the more cost
effective it becomes so long as they
are in the same class.
How can design rights be enforced
when someone copies your
designs?
If a designer has a Registered UK or
EU design this is a monopoly right
(you have a certificate which says
you “own” the design) and you do
not have to prove copying. With an
Unregistered design you need to
provide evidence of design
ownership i.e. a design audit trail.
(ACID offers its members a free and
unlimited design register providing
independent evidential proof
regarding the date this is received
by the ACID office). ACID’s advice is
to communicate the value designers
place in the designs you create
DESIGN = VALUE and suggested
the following statement is used on
all marketing material, websites,
product labelling.
“All intellectual property rights existing in our designs and products (and in the images, text and design of this website/ marketing material) are and will remain the property of (insert designer’s name). Any infringement of these rights will be pursued vigorously.
This statement is available in ten different languages. Prevention and deterrence should be a key priority in all design processes so that IP rights can be fully exploited and reap the rewards of the design equity which has gone into bringing a product to market.
What constitutes an infringement
of Unregistered or Registered UK
or EU design right?
An infringement will occur where
another design creates the same
overall impression to the informed
user as the original design
What can I do to protect my
unregistered designs?
Quite simply, sign and date all
design drawings and keep them in a
safe place, preferably set up a
document management system or
send them to a third party – your
solicitor, accountant or to an
organisation such as ACID who
offer a free Design Register to
members providing third party
evidential proof of date of
origination. This does not add to
your rights but can help substantiate
your design ownership with
compelling evidence should you
ever need it.
In many cases going to court is the only way to enforce your design rights - this can prove expensive - is there another way? Often a comprehensive letter before action (LBA) or a “cease and desist” letter can be effective in achieving the objectives of a designer who has been copied especially if that is strengthened by being able to offer evidence of a registered design. A good LBA is also strengthened by the underpinning of the ACID brand which communicates that a member knows and understands their rights, asserts their rights and communicates that they are prepared to take action. Only 3 out of the 200 settlements on behalf of ACID members have reached a final court hearing. Over two million pounds has been recovered in costs and damages. All successful settlements are communicated throughout the relevant trade press, thereby communicating a deterrent message to competitors within the same marketplace. Don’t forget too, that you can now protect yourself further by having intellectual property insurance and ACID has just launched such a scheme with REACT. The scheme is underwritten by Hiscox. Increasingly, companies who experience copying problems are suggesting IP mediation as a cost effective route to problem solving. If a company suggests this course of action to the alleged copyist and they refuse, should the matter go to Court the Judge will not look at this favourably if the alleged copyist has refused to take the reasonable mediation route.
Are design rights as effective as
they should be? If not why not and
how can this be rectified?
Whilst we are delighted with the
introduction of the Registered
Community Design and see the
deterrent aspect as a real benefit for
designers, we feel that the
Enforcement Directive does not
address some fundamental issues.
ACID has submitted responses on
the European Enforcement Directive
urging the introduction of criminal
sanctions for design infringements
and the expansion of the remedies
available for design infringement.
ACID is also campaigning for the
introduction of a new law of
Unlawful Imitation and considers
that there is a loophole in current
legislation. After two years of
lobbying Government there has
been an acknowledgement that the
examples and arguments submitted
by ACID - that “passing off” does not
provide an appropriate legal
remedy for certain legal issues - part
one of our objectives achieved. Part
two is to ensure that the new law is
implemented.
How can I fully exploit the IP I
create?
Pressure to innovate is forcing
brands to develop new partnerships
– IP can be successfully exploited
through licensing and it can be a
way to satisfy a range of corporate
objectives from entering new
markets to repositioning of the
brand to reach new markets and,
therefore, responding to the
increasingly challenging business
environment.
Is it worth protecting products by
applying for design rights?
As the inventor Trevor Baylis says
“No-one pays you for a good idea but they may pay you for a piece of paper which says you own the idea” – we agree!
www.acid.uk.com
ACID membership hotline 0845 644 3617
