WHEN IS A DESIGN A NEW DESIGN?

What is the definition of design?

“Design” means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, colour, shape, texture, contours, materials and ornamentation. Unregistered design rights last for 3 years in Europe and 10 years in the UK. The Registered Community Design is a monopoly right lasting 25 years, renewable every 5 years. It is valid in 27 member states. www.oami.europa.eu Obtaining a registered UK or Community design is still quite expensive for many, so ACID has a design data bank which stores thousands of designs – this service is free to ACID members. The design data bank does not add to rights but provides evidence of the date designs are received by ACID providing independent evidence of design creation should it be required.

One of the most important priorities for launching any new designs is to take steps to ensure they are protected before going to market. 

Nappy Cakes cpACID member Miranda Hart, of Nappy Cakes Ltd., has created a simple range of “nappy cakes” which cater for all budgets. All the gifts available on the website are thoughtful, practical and beautifully presented. Each cake is ‘freshly baked’ or, in other words “freshly designed” to order which means that Miranda can claim artistic craftsmanship in the copyright of each individual design. In essence this means that because her designs are “one off and made individually” she could rely on copyright should someone decide to replicate her designs. Miranda also photographs each design herself and the photographs are signed and dated and a copy sent to the ACID Design Data Bank giving her peace of mind that an independent body holds copies of her designs. “Don’t forget too”, said Miranda, “That I also own copyright in the photographs I take so that in the event someone decides to use any images from my website I can also claim copyright protection in the photographs.  This proved to be invaluable in a recent “fracas” with a competitor who had “taken” my images and placed them on her own website passing them off as her own”. A call from Miranda claiming copyright in the photographs, whilst also mentioning her ACID membership, achieved her objectives!   

Artistic copyright will exist in sculptures, works of architecture and works of artistic craftsmanship (the definition of which is uncertain, but is probably limited to works of or similar fine art e.g. hand blown vases). The work must be original. No formalities are required and the ownership will rest initially with the creator or their employer. Artistic copyright lasts for the life of the creator plus 70 years following death. However, if the design is industrially exploited (e.g. where more than 50 items of the article are produced) this period is usually reduced to 25 years from the end of the year of commercial exploitation.

dogcpTake ACID member Isabelle Alice Ltd., who have created traditional, timeless and quality heirloom pieces. Owner Sarah Hollier said, “We started our business after we found it difficult to find that ‘special something’ that would stand the test of time and become a cherished treasure. Our research then proved that there was a distinct gap in the market for original, handcrafted and unique gifts for all sorts of special occasions – be it birthdays, christenings, anniversaries or simply to hang on your tree at Christmas allowing the gift to become part of the family’s Christmas tradition when the tree is decorated”.

Not only is there copyright in the signed and dated drawings which are sent to the ACID Design Data Bank but they also have unregistered design right in the products that are produced from the drawings. Unlike Miranda Hart of Nappy Cakes, Isabelle Alice do not take their own photographs of finished products and so owner Sarah Hollier is going to ensure that her photographer friend assigns the copyright in the photographs so that there is clarity of copyright ownership in the images she has commissioned.  

sail boatcpTheir commitment to excellence means they have chosen one of the few remaining independent goldsmiths in Great Britain to make their precious, solid silver gifts. The family run workshop is based in Rutland has been established for over 20 years and in order to make their gifts as unique as possible, they have agreed that they will only make 750 of each design which can be engraved with an inscription of their customer’s choice. An ancient lost wax process is used to make their designs. This is a traditional hand crafted method of metal casting in which a molten metal is poured into a mould that has been created by means of a wax model. Once the mould is made, the wax model is melted and drained away. A hollow core can be effected by the introduction of a heatproof core that prevents the molten metal from totally filling the mould. The lost-wax method dates from the 3rd millennium BC and has sustained few changes since then.  Each decoration is hallmarked and engraved with ‘Made in England’ and the limited edition number.

Inventiveness springs to mind when describing designer and ACID member Susan Edgerton-Ball’s award winning company (SEB). She gained her business and marketing experience with Gardener Merchant, thereafter studied design at the Regent Academy in London. In 1990 she set up a company to manufacture, market, sell and distribute a new and unique novelty product of her own “Sunstrips Disposable Sunglasses”. This award-winning product sold in eighteen European countries. The product was ultimately licensed to a promotions company under a Royalty deal. In October 2008 she licensed off a self adhesive children’s character light-switch cover under a royalty deal to assist in the funding, development and setting up of the company. SEB is currently working on two projects, a whole new range of Greeting Cards under the brand name Cardframes. More recently, Susan protected a new innovation Belt Buddy a plush toy designed as a cuddly travelling companion. The product is scheduled to be launched January 2010. She is currently arranging production of a whole range of Belt Buddies for the Zoological Parks, London Tourist design and Football Mascots, including a special 2010 World Cup “Lion Cub” Belt Buddy.

Susan has used ACID’s industry standard License Royalty Agreement to underpin all her licensing relationships. Andrew LeeSunstripscp1990 from ACID Accredited law firm McDaniel & Co steered her through a path which has led her to clarification of all agreements and below are her three top tips when negotiating a license royalty deal:

  1. Make sure that the company you deal with commits to sales for a period of at least 3 years and that there is a clause included to enable you to accurately audit their Accounts.
  2. Ensure that your Royalty Payments in the Agreement are in monetary terms rather than percentage terms.
  3. Ensure you have an intellectual property lawyer specialist to include additional clauses in the standard license royalty that are pertinent to your particular needs.

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