100% Design and Decorex will shortly welcome hundreds of worldwide buyers whether multiple, retail, independent or contract. Both ACID Accredited Exhibitions will offer a unique environment to view new and existing products under one roof so it is true to say that the exhibition venue is a one of the most significant dates in the diary for both buyers and sellers aspects. There is no doubt that online buying and selling has seen increasing growth but nothing replaces the look, touch and feel of the real thing! So intellectual property (IP) planning for exhibitions is a key calendar priority. If exhibitors get it wrong there could be little return on investment. If, however, you get it right you can establish relationships, consolidate the intellectual capital in your brand and communicate your anti copying policy – an essential objective for those whose reputation and future depends on original design.

So what is the answer? In short, an investment of a little time to put your intellectual property (IP) house in order before an exhibition will pay dividends during and after the show if you have a sound IP strategy in place.

DURABLE, HUMOUROUS AND FUN!

Derek Welsh Launches Dog Leg Chair at 100% Design

For smaller, design led furniture designers like ACID member Derek Welsh, 100% Design will provide an excellent opportunity to show case his original new work. Derek, a designer and maker of contemporary furniture will be showcasing his latest work at 100% Design (Stand H13). Amongst many other new designs, will be his unique Dogleg Chair. Derek says of his new design, “It’s durable, humorous and fun to sit on and has been designed with an angled back to accommodate the sitter’s elbow in the rest position. It’s unique and surprisingly comfy and will take the strain of many a tête-à-tête!”  In preparation for the exhibition he has sent copies of this and other new designs to the ACID Design Data Bank.  Said Welsh, “This will provide me with independent evidence as to my design ownership, should it ever be required. Welsh also communicates his IP policy on his website by displaying the instantly recognisable Member of ACID logo. www.derekwelsh.co.uk

SCABETTI PENDANTS LIGHT UP 100% DESIGN!

The creative force behind Anti Copying in Design members, Scabetti, is the English design duo, Dominic and Frances Bromley. Their sculptural forms have been an iconic addition to the world of design, so much so that 100% Design team placed 4 Cibola Pendants on display in the welcome area of Earls Court this year and have featured their Cibola Pendant design as part of this year’s lead promotional graphics to launch the show this year, online and in International print media. Each fine bone china shade has a carved pattern of concentric rings, inspired by the many layers of an onion. By day, the Cibola looks beautiful as a sculptural white form, by night, the translucent bone china glows, emphasising the surface detail. The two shades create an eclipse-like effect, with reflected light spilling out of the crescent shaped hollow. This year new designs will be unveiled by Scabetti and any visitors to 100% Design should ensure that a visit to the Scabetti stand H20 is a must.

Design, craftsmanship and originality spring to mind when describing this dynamic duo which is why they pay particular attention to protecting the work they create. “We try to include as much detail as possible on the ACID Design Data Bank forms”, said Frances, “We have found that by adding photographs to accompany the signed and dated design drawings together with a full description of the evolution of each design process gives an accurate audit trail.  In this way we can ensure that there is an efficient and effective document management system in place to substantiate our design ownership credentials”.  www.scabetti.co.uk

Following in ACID’s footsteps demanding criminal sanctions for design theft, Trevor Baylis the clockwork radio inventor has also called on Government to create criminal sanctions for patent theft.  Baylis said, “I believe that UK plc should stand behind those courageous individuals whose ideas can change all our lives both commercially and socially”.

Dids Macdonald, ACID’s CEO said, “I am delighted that Trevor has picked up this mantel too.  It is high time there was parity in the penalties for intellectual property theft. ”

Vince Cable MP who championed a private member’s bill which increased the penalties for copyright theft from a maximum of two years to 10 years imprisonment told BBC News, “There isn’t the protection that exists in other areas of intellectual property. “If people steal ideas from creative artists, you can go to prison for that. But patent theft is just part of life.”

Trevor Baylis OBE

The same goes for design theft. To sign ACID’s Number 10 petitions

According to Sarah Cook of ACID Accredited law firm DMH Stallard, “The High Court has confirmed that without prejudice exchanges can be admissible in Court to help identify and determine the meaning of terms contained within settlement agreements”.

Many ACID members are familiar with the term “without prejudice” but the legal implications of its use are not always clear-cut. A common misconception is that marking something “without prejudice” means the Court will never get to see it. That is not necessarily right.  Only documents and negotiations which contain genuine attempts to settle disputes are protected, whether or not they are marked without prejudice.  This prevents fraud and misrepresentation from being hidden under the cloak of the without prejudice rule.  But it doesn’t stop there.

In order to arrive at a fair outcome in the case of Oceanbulk Shipping & Trading AS v TMT Asia Limited and 3 others the High Court had to consider whether without prejudice exchanges leading to a settlement agreement were admissible.  Oceanbulk alleged TMT had defaulted on a without prejudice settlement agreement and owed it $40.5 million.  TMT alleged that, due to a complicated transaction known as “sleeving”, where companies hedge their position on future freight prices, the amount owed to Oceanbulk was significantly less.  Evidence of the parties’ discussions regarding sleeving was identifiable from without prejudice negotiations. The Court found that evidence was admissible to identify the terms of the agreement and their meaning. 

Sarah Birkbeck, a Partner of DMH Stallard LLP, comments: “This is not a surprising outcome and negotiating parties should always be cautious about what they say to each other and remember the context in which discussions are taking place”.So whilst the without prejudice rule remains in place, negotiations should be conducted with the  possibility of admissibility in mind, if it could help resolve any ambiguity that arises in an ensuing settlement agreement.

Sarah Birkbeck  

Oceanbulk Shipping & Trading SA v TMT Asia Limited & 3 Others [2009] EWHC 1946 (Comm)

Tourists warned – French and Italian Governments clamp down on consumers who buy fake goods!

In a recent BBC interview counterfeiting was highlighted as a multi billion pound illegal business – champagne, fake bags, watches, DVD’s, handbags, medicines and alcohol, a tiny fraction of counterfeit goods seized by Trading Standards – all fakes contributing to the 10 billion loss to the UK economy. France and Italy have taken the firm step on what is called “counterfeit tourism” and say they are focusing not just on those who sell fake goods – but people who’ve bought them. In France new laws mean tourists could be fined thousands of pounds – or even imprisoned. Those found guilty face maximum fines up to 300,000 euros and a maximum of 3 years in prison. Not only will the fakes be confiscated but those found guilty of buying fake goods will have to pay twice the cost of the original. So let’s take a genuine Louis Vuitton costing thousands, this would mean a hefty fine of several thousands euros. Susie Winter, Director of the Alliance Against IP Theft (of which ACID is an associate member) says, “These are not just cheeky chappies trying to make an honest living, they are hardened criminals with significant links to organised criminal gangs, child labour and drug trafficking”. She urged consumers to hunt out true genuine items – fake alcohol has caused many deaths, fake toys can pose a real danger to children and fake perfumes have burnt and cut people

The UK Government has decided against criminalising consumers and will continue to target the suppliers through Trading Standards and the Police. It has also launched an information campaign aimed at people using markets and boot sales. However, the industry wants a much more coordinated approach through a consultation process with a nationwide approach.

Every day the legal and membership hotlines receive many calls from members – that’s what they are there for!  However, we are often asked the same questions time after time, so we thought it would be a good idea to appoint an “IP Doctor” to start an archived list of some of the most common myths, howlers and general IP queries.

This is not an exhaustive list, but will, hopefully, clarify quickly certain IP queries. This month Andrew Lee of ACID Accredited law firm McDaniel & Co answers some of the most common queries on trade marks starting with the following.

Why do some brands have ® after them and some have ™? Is there a difference?,  Andrew replies, “if you have a registered trade mark then you are permitted to use the ® sign to indicate that the mark is registered. It is an offence to use the ® sign if the mark is not registered. Using the ™ sign simply means that you are using the particular sign in a trade mark sense i.e. to brand your goods, but that the mark itself is not registered. Being able to use the ® sign can also be considered a further benefit of obtaining a trade mark registration as it can have a deterrent effect”. 

Continue for more on trade marks and further IP queries.

Andrew Lee of McDaniel & Co

ACID Ambassador Sebastian Conran will join iconic fashion designer Katherine Hamnet and others to form a panel group an illustrious line up of speakers in part of the ‘Inspiring Entrepreneurs’ series at the British Library, in partnership with HSBC. The event will bring together entrepreneurs who have built success through effective IP management. The panel will also include a leading legal expert to address questions related to patents, trademarks, copyright and IP infringement. For inventors, innovators and entrepreneurs, this could be the most valuable event of your business’s early life.

Whatever your business, you own intellectual property – design of products, company logo, or knowledge that’s gone into website development. Protected and maximised, IP can bring great business benefit. However, many entrepreneurs and small companies fall foul of the rules and suffer as a result.Event details:
Who should attend? Entrepreneurs and SMEs
Place: British Library Conference Centre
Cost: £10.00 (concessions £7.50)
How to Book: Call our Box Office on +44 (0)1937 546 546 or visit the website to book online Event dates Wed 23 September 2009, 18.15 – 21.00

A decision, unlikely to be popular with record companies and music producers was handed down by the The House of Lords, prior to becoming the Supreme Court, in Matthew Fisher v Brooker and others, a case dealing with copyright in the famous song “A whiter shade of pale”. The House restored the declarations made by the High Court at first instance in favour of Matthew Fisher, the former organist in the band Procol Harum. The case is of interest not only to older music fans, but to lawyers because of the substantial delay in time between the events given rise to the Action and the Action itself being brought. The song was released in 1967 and Matthew Fisher’s contribution is the well-known introduction which is repeated at various points in the song. Fisher left the band in 1969 and commenced action in 2005 seeking various declarations in respect of the copyright.

At first instance the High Court made the following three declarations in favour of Fisher, rejecting the Defendants’ arguments based on delay, laches and acquiescence:

1. Matthew Fisher was the co-author of the song.
2. Matthew Fisher was a joint owner of the musical copyright in the song and the Court assessed his share as being 40%.
3. The Defendants’ licence to exploit the song was revoked on 31 May 2005, the date when the action was started, 38 years after the initial release of the record.

This meant that Matthew Fisher would be entitled to receive ongoing royalties and could theoretically seek an injunction to prevent further exploitation of the song. A claim for past royalties was rejected.

The Defendants appealed the decision. The Court of Appeal upheld the first declaration but allowed the Defendants’ appeal on the other parts, holding that Fisher’s “excessive and inexcusable delay” before bringing a claim, and his acquiescence in the Defendants’ commercial exploitation of the song meant that it was unjust that he should succeed in his claims to a joint interest in the song or to have the implied licence revoked.

The House of Lords overturned the Court of Appeal’s decision on the basis that it would be wrong and inconsistent to conclude that Mr. Fisher was not estopped from asserting his copyright interest, but then to refuse on equitable grounds to declare that the right existed. The Court of Appeal had based its decision on the basis that it would be inequitable for Mr. Fisher to seek an injunction to enforce his rights and to prevent this they had overturned the second and third declarations.

However, the House of Lords said this was incorrect noting there was nothing under English law which set a time deadline for laying claim to ownership of copyright and noted there is no equivalent doctrine of adverse possession as in land law. In addition the Lords said there was a crucial distinction which exists between “the exercise of rights and the obtaining of discretionary remedies”. If and when Fisher sought an injunction to restrain an alleged infringement of his copyright, such an application would be dealt with on its merits.

This was different and separate from the declaration as to what rights Matthew Fisher had and his future benefit from those rights. The Court of Appeal’s decision deprived  Fisher of the ability not only to seek injunctive relief, but also to claim any royalties in respect of the exploitation of the work, of which he owned 40% of the musical copyright.

The Lords also rejected the Defendants argument based on laches (delay) on the basis that firstly laches could only bar equitable relief, and a declaration as to the existence of a long-term property right, recognised as such by statute, was not equitable relief.  Secondly, the Defendants could not show any prejudice resulting from the delay, rather they had actually benefited for almost 40 years with Fisher not taking his share of royalties and even if prejudice could be showed, it was outweighed by the benefit.

The decision is unlikely to be popular with record companies and music producers and it demonstrates the importance of ensuring in negotiations between recording companies and artists that clear contractual documentation is in place dealing with the ownership of rights and any subsequent versions. 

From a legal aspect, the decision is important as the House of Lords made clear there is a difference between the exercise of rights laid down by statute and the granting of discretionary remedies. The decision also shows that in the right circumstances, even extreme periods of delay may not bar claims to copyright.

As partners of the British Library Intellectual Property Centre, ACID would like to ensure readers are aware of the following seminar: MAXIMISING TENDER OPPORTUNITIES - The procurement process, whether public or private, can be complicated and time-consuming. Often, people forget that actually writing the bid is just one element of the process – you also need to know where to look for opportunities, how to navigate your way around the tendering invitation document criteria, and to understand the implications for your organisation if you reach the final stages and eventually win the bid.  Protecting your intellectual property is key when responding to tender! A key benefit of ACID membership is access to the ACID Design Data Bank. Copies of any tender documents can be lodged with ACID and an acknowledgement placed on the submitted tender document. This will ensure the recipient is fully aware of your rights’ ownership.  ACID’s SAFE PITCH Kit is available through ACID TRADING. 

WHEN?  Session 1: Introduction to Tendering: 6th October 2009 2.30pm – 5.30pm Session 2: How to Write a Winning Bid & Accessing the Right Finance: 20th October 2009 10.00am – 16.00pmTraining

WHERE? Room 2 – Development House, 56-64 Leonard St – EC2A 4LT

As part of its Opening New Markets Programme, LCRN is running a free workshop series for social enterprises that are incorporated to introduce you to the procurement process. You will learn about:  The tendering process, skills you will need to manage the process, documents you should have in place,  How to respond to a pre-qualification questionnaire (PQQ) and then to write a final bid,  Where to access finance Plus it will be a chance to network with other social enterprises looking to expand their horizons through tendering for new work. To book, please email Suzanne Uittenbogaard: suzanne@lcrn.org.uk or call: 020 73244701. The London Community Recycling Network is a community of charities, social enterprises, public sector bodies, individuals and businesses all working to make best use of resources for London.