As ever, Spring Fair proved a fantastic launch pad for an impressive number of micro enterprises, as well as household names, all seizing the opportunity to market new designs and products.  But it was a mixed Fair for ACID member Jan Constantine. On one hand her order book was full and over flowing but the excitement was tinged with frustration at having discovered not one, but three, alleged copies of one of her design collections. Most exhibitions are natural showcases for new products but some exhibitors can also be vulnerable to those who seek the fast track to market through copying and Jan was no exception this year.

Fortunately, ACID was able to help and, using the Exhibition Protocol for complaint handling, informed the people concerned and put them on notice regarding the complaints. Prior to that one of ACID’s IP lawyers had confirmed Jan’s IP ownership and that there were sufficient similarities in the alleged copies to inform the stand owners in question. None of the companies concerned cooperated with ACID’s requests to remove the products and matters are now being dealt with by ACID Accredited law firm McDaniel & Co. The clear message to anyone thinking about marketing any new product is that they are unauthorised to do so unless they have created their own intellectual property rights or have a license to market those products.

Following the alleged copying discoveries Jan Constantine commented, “All intellectual property rights in our designs are the property of Jan Constantine Ltd and any infringements will always be taken seriously. It took a significant amount of investment and time to create our product range and it’s something I feel very proud about. If people are proved to be copying, then the Spring Fair organisers should not allow them to rebook in the future.”

Jan Constantine’s background in fashion, interiors and styling proved a real driving force behind her ambition to fulfill a lifetime’s ambition and produce her own Collection and all the designs are created by her with help from her team to implement them.  Copies of all designs are sent to the ACID Design Data Bank and this provides valuable evidence of the date they are received which provides compelling evidence in pursuing any IP infringement.

Jan commented about ACID, “We joined Anti Copying in Design (ACID) to protect our designs and the intellectual capital which underpins our brand.   One of the main advantages is the visually powerful ACID logo which, when used at Fairs and Exhibitions, helps to deter others from copying.  The ACID logo is prominently displayed on the homepage of our website and also inside the front cover of our new brochure.”

As a member of the newly created ACID Spring & Autumn Fair IP Steering Committee, Jan endorses ACID’s objectives to work closely with ACID Accredited Show Organisers Emap to build on the positive IP work already achieved.  Not only in their support of respect for intellectual property, but also to ensure that the voices of those who represent ACID members and others exhibiting at the show are heard loudly and clearly so that improvements can be considered for the future. Jan hopes that the new ACID IP Steering Committee will be a first for many exhibitions in the UK. “After all”, added Jan, “We invest heavily each year in exhibiting at several exhibitions in the UK. We are there to market and sell our products, not to have to spend time going after copyists. We look to the UK exhibition organisers to take a leaf out of European organisers’ books who take a much firmer attitude to infringement of original designs”.

So, whether you are an established company within the giftware sector, or a start-up hoping to make it in today’s competitive market, there is no time like the start of a new decade to take a fresh look at what is one of your most important assets – your intellectual property. Daunting though it may sometimes appear, there are some simple steps all businesses should take to ensure that this precious commodity, the lifeblood of business in the 21^st century, is protected. After all, we are no longer a nation of shopkeepers, ours is a knowledge economy and full exploitation of your intellectual property will be key in today’s competitive marketplace. One person’s innovative ideas – if carelessly discussed without confidentiality – can be another’s instant passport to success.

Key Spring Fair exhibitors who are also ACID members have accepted an invitation from ACID to join a new steering group. The ACID Spring & Autumn Fair Intellectual Property Steering Group’s objectives will be to build on existing progress and cooperation with the organiser Emap and also to develop new initiatives to address concerns on the increase of copying within this sector.

Dids Macdonald, ACID’s CEO said, “Having worked positively with Spring & Autumn Fair for the past decade, I am delighted that, together with the IP Steering Group, we can identify specific concerns and drive forward improvement via positive dialogue with the organisers. Raising awareness about the need for more respect for Intellectual Property is a real issue for design led companies. After all, the Fairs are one of Europe’s leading showcases for new and innovative products to be launched and it is critical to each and every exhibitor investor that they can trade in an environment where there is an absolute zero tolerance of IP theft.

Steering Group member Patrick Heeley of Villeroy and Boch said, “A deciding factor for us attending Spring Fair is that ACID will be present with their on the spot mediation service. I would also like to see a heightened acknowledgement by the organiser’s on their zero tolerance policy to copying.”

LSA’s Penny Laughton added, “I would like to see an Emap board director fully engaged with ACID and the issue of IP.”

ACID’s IP Steering Group members also include, Black & Blum, Creative Tops, Caroline Gardner Cards, Fiesta Collectibles and Jan Constantine.

The Associate Parliamentary Design & Innovation Group, in partnership with the DBA, launched the findings of a 6 month inquiry into procurement of design services with a reception and panel discussion in the House of Lords. Hosted by Baroness Whitaker, co-chair of the inquiry and design enthusiast, attendees were introduced to the findings and recommendations by DBA’s CEO Deborah Dawton after a welcome from the APDIG by Group Officer Barry Sheerman MP.    One of the APG’s founding members, 15 years ago, Barry said how pleased he was to see this new direction for the group, commending it as ‘the best way we’ve engaged with the broader design community.’ However he called for the design community to be more determined in their lobbying of government, in the mission to bring design to the heart of public life.

 ‘Through this report we’ve engaged some of the leading people in design, engaged parliamentarians from all parties. But the coming election poses a real challenge. The composition of the house will be changed fundamentally. Design is at the very heart of most of what we do as civilised human beings, and we’ve got to engage the people who run this country in a more meaningful way.  The DBA and the Design Council and the APDIG are part of that, but together we’ve got to be greater than the sum of the parts.  I challenge the design community to do better: because, I’m afraid to say, often the design community are pathetic at lobbying. There is nothing wrong with giving people in public life a really hard time. Especially if they think that design is just some nice add-on at the end of a process.  Design is at the heart of everything we should be doing as a modern, progressive, innovative society. This isn’t just a nice lunch. Make this the day that you devote your energies even more to spreading the importance of good design at the heart of public life.’

Following Barry’s rousing speech, the 120 assembled design industry professionals were given the oppportunity to question the inquiry’s steering group on the report’s 10 recommendations through a Q & A session.

ACID CEO Dids Macdonald, said, “This excellent initiative bodes well for “design” to be put further up the scale in Government Procurement Policy. As with all these initiatives it needs foot soldiers to make it happen. ACID members will be interested in the proposed improvements but it will only happen by taking up the mantle with their own MPs to ensure that design has its appropriate place in the Government Procurement process and, indeed Government policy as a whole. ACID’s interest in procurement stems from issues arising when intellectual property is infringed at the pitch/tender stage, sometimes knowingly, sometimes unknowingly. Bearing in mind the ongoing “Free Pitching” debate and the need for heightened awareness of the value of IP created through creativity and innovation, I was disappointed to see no mention in the otherwise excellent recommendations. I would very much like to see intellectual property issues included in the Procurement Process and, in the case where there are disputes, a recommended move and commitment towards mediation as a credible alternative in dispute resolution”.

ACID is an Associate Member of the Design & Innovation Parliamentary Group

The UK is known for its iconic brands and currently spends £32 billion pounds on building brands.  One of the world’s most successful investors in history Warren Buffet rates “The Brand” as the first in his top three priorities in which to invest and so a visit to London’s Museum of Brands is well worth it to see the rich heritage of brands and their important relationship with Intellectual Property (IP).  In March the Museum of Brands, in collaboration with the UK Intellectual Property Office, opened its doors revealing some of the most successful brands that were created over 100 years ago and still remain as popular today.

 David Lammy, Minister of State for Intellectual Property, speaking at the exhibitions opening said,  “Brands play a huge part in everyone’s daily life. Effective branding not only adds value to products and wealth to economies, but can define us as individuals and become cultural phenomena. Whether the brand is long established like ‘Oxo’ or relatively young like ‘Innocent drinks’ it is the Intellectual Property rights within the brand that allows the businesses behind them to prosper.”  He continued  “It is crucial that the next generation of young brand creators understand the benefits of such IP protection; the exhibition and new website will help them do just that. Today’s brands are just important as those steeped in history; they will become the iconic brands of tomorrow, we must value and protect them.”

The exhibition aims to inspire students and other visitors to think about brands and how they can be created, managed and exploited, using trade mark and design rights that protect their creative and intellectual investment.  One of many popular brands explored at the museum is Reggae Reggae Sauce created by Levi Roots, which was featured on BBC’s Dragons Den show.

The museum and this additional exhibition feature hopes to encourage and nurture its visitor’s interests in branding, leading them to be the next designer, creator or innovator of yet another popular and iconic global brand for generations to come. 

Further to the exhibition, the IPO and Museum of Brands have developed a host of educational resource materials.

These include a new dedicated website which contains various worksheets for students to download that explore branding and intellectual property.  The website also holds a wealth of further information about both these areas and has links to additional content hosted at the IPO or the Museum of Brand’s own websites

The exhibition and learning resources follow the recent ‘Branding in the modern economy” conference which the IPO held in London at the end of last year. 

Further details of the museum’ opening hours and charges can be found in the original article on the IPO website

www.ipo.gov.uk

www.museumofbrands.co.uk

This month we have asked IP Doctor Andrew Lee of McDaniel & Co. to answer questions we regularly receive regarding designs and products which have a combination of existing elements alongside new design input.

If anyone has specific questions they would like us to address for the next issue of the e-newsletter please e-mail jane.stephenson@acid.uk.com who will choose a selection of the best questions for our April e-mail.

• I paint pictures of famous people such as Audrey Hepburn, Marilyn Monroe etc. using photographs that I have obtained. Am I infringing copyright of the photographs?

Assuming the photograph is still in copyright, you could be infringing copyright. This is because photographs are specifically protected as artistic works pursuant to the Copyright Designs and Patents Act 1988 and an infringement will occur if the whole or a substantial part of the photograph is reproduced, in any material form, without the copyright owner’s permission

However, take the situation where you reproduce the photograph but in doing so you reproduce it using a degree of skill, such as the use of a mosaic technique, then you may yourself have a copyright in your finished work. In other words you might infringe copyright in the original photograph but yourself have acquired a copyright because of the skill and thought used to make the reproduction. There may then be issues as to whether your copyright is enforceable or whether you need to make terms with the photograph owner to exploit your work.

• I create boxes to hold stationery – which are covered in a Laura Ashley fabric – do I have any rights in the final product and will I get into trouble for selling my product?

It is possible that the fabric purchased from Laura Ashley may have some form of copyright protection such as a print or pattern. However, provided the material you buy is genuine, and not counterfeit, you will not infringe copyright by that use as you are not making a copy of the fabric nor are you then selling it to the public for the first time. These acts were done by Laura Ashley, or through another party with Laura Ashley’s consent and therefore their rights are what are known as “exhausted” to prevent further circulation of that particular piece of fabric.

In terms of your rights in the finished product, you will not own the copyright in the pattern or print of the fabric because that is likely to be owned by Laura Ashley.  You may have rights in the other pieces of your product such as the shape of the box, provided you designed the shape. You may also sell the product under a particular brand or name which you may have unregistered rights in and which you could convert to a registered trade mark. 

Whether you have any rights in the combination of your box with the fabric is debatable. It could be that the combination itself is new and of individual character and thus may be protected by European Community Design right.   However, as the fabric design would have been available before you made your product it is arguable that the product is not new or not different enough from the prior art to be considered new. It may also be possible that the owner of the copyright could object to that use, however this area of community design law is presently uncertain as the right is relatively new (2002) and there has been little case law.  You will however be in a much stronger position to claim rights in the finished product and prevent others copying if you have designed all of the relevant parts yourself.

• A rival company has used one of our products as part of a photograph to publicise their own goods.  Can they do this?

It will depend on the circumstances. It could be that your product has unregistered rights in it such as copyright on the packaging and it is arguable that the photograph reproduces, without your permission, the packaging which is protected by copyright. It is likely the company has deliberately incorporated your product into the advert for the purpose it can be seen so that use cannot be said to be incidental.  Furthermore, if your product is successful, or sold under a particular brand or name for which you have developed a reputation, it could be possible to mount a passing off action on the basis that people reading the advert may be confused into thinking you have endorsed the other companies goods.  Each situation is a matter of fact which you should seek advice upon.

• Surely it is OK to re-use/download a picture or video shown on a website – after all it is in the public domain?

There is an argument that people who upload material on the internet are impliedly consenting to the subsequent use of that material by others. However, the default position is that if you download a picture or a video from a website, you then make a “copy” of that work on your own computer because making a copy of a work includes storing it in an electronic form. By making that copy, on the basis that the original work is protected by copyright, then you will prima facie be infringing that copyright.

This is then subject to whether the rights holder has consented to that download for example in their terms and conditions of use on the website, or a statement saying the content can be used provided an acknowledgment is given. In addition the purpose for which you have used that work may come within some of the special defences to copyright infringement.

However, in summary, it would be dangerous to assume you are allowed to download such material simply because it is on the internet.

• I have copied someone’s work but I did not know that this was not allowed or that the person concerned was the owner of copyright. Surely that is a defence?

Unfortunately not. The primary acts of copyright infringement, such as copying a work, are acts of strict liability subject to any statutory defences. This means the ‘doing of the act’ itself is sufficient for an infringement, irrespective of your state of knowledge. Innocence is no defence.

There is a limited defence which provides that if you did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the other person is not entitled to damages against you, but without prejudice to any other remedy (this means that person can still get an injunction or an account of any profits you have made from using the work). However this defence is narrow and will be of limited application, likely only in circumstances where the term of protection of the copyright has run out or where the type of work copied is of such a character that it ought not to be protected by copyright.  The basic point is that if you have any doubts about what you can and cannot do, speak to a lawyer before you do them!

Our friend and Media Supporter IPKat has been keeping a close eye on developments in the fashion department – particular in the world of Popular Music.  Even if you don’t know your Beyoncé  from your Beethoven enjoy the articles – they certainly raise a smile.

In what has to be one of the more bizarre copyright disputes, the underwear manufacturer Triumph sued Sony because Beyoncé was wearing copyright infringing underwear in her music video “Video Phone”. Seriously.

The design in question by Bulgarian designer Iskren Lozanov is shown on the right, the music video below (the infringement occurs at about 0.50′). This week, the 7th Civil Chamber of the Landgericht Munich upheld an ex parte injunction barring Sony from distributing the “Video Phone” clip in Germany.

Triumph argued Beyoncé was wearing an unauthorized reproduction of the Iskren Lozanov design. Sony countered that both designs were inspired by Picasso, but otherwise, there were few similarities. The slips, in particular, were wholly different. The judge disagreed: the Lozanov design was highly original and enjoyed a wide scope of protection, and was therefore infringed by the underwear worn by Beyoncé.

Sony’s lawyer announced that, after consultation with Beyoncé, he would most likely appeal the decision.The IPKat thinks that studying the file for this case must have been more fun than your average pharma patent case. Merpel adds, if you weren’t a cat, I’d call you a chauvinist pig.  Click here for more information.

Writing on BrandChannel this week, Abe Sauer takes issue with one Stefani Joanne Angelina Germanotta (better known as megastar and fashion icon Lady Gaga) for over-egging her brand protection through the extension of her US trade mark protection into markets with which she is not usually associated. He writes:

“… last October, the artist’s management moved to protect her brand by trade marking everything GaGa. However, a look at recent updates to the trademark show that GaGa, or her management, may be on the verge of ruining everything.

The documents show that the Lady GaGa trademark covers, among other things, “caps, visors, boxer shorts, headbands, sneakers, swim wear, bras, scarves, hosiery, pajamas, and robes.” Oh, and Lady GaGa sweatpants. The update is more worrisome, however, as it includes vinyl covers for cell phones, MP3 players, laptops. It also claims rights to Lady GaGa “gift certificates which may then be redeemed for goods and services.”

No one should be surprised that the talented singer/songwriter is lending her image to an imaginative array of endorsements, but even the most ardent fan has limitations, and saturating the market with one’s personal brand brings with it the risk of backlash. …

The branding industry is fraught with brand expansion cautionary tales (Harley-Davidson-branded cake decorating kit anyone?). The lure of profits is powerful, but it can be destructive if the brand becomes too diluted. So the GaGa brand, which communicates sever individuality and near-absolute uniqueness, is particularly at risk. …

GaGa would be wise to look before leaping as she contemplates a “Lady GaGa GooGoo Sippy Cup.”"

Fashionista wonders whether this criticism might be a little harsh. Given the frenetic rate at which she composes, performs and evolves her stage persona, it is quite possible that Lady Gaga and her management team did not actually set aside a few hours to curl up by the fireside with the latest edition of the Nice Classification. More likely they entrusted the list of goods named in her US application to a local practitioner who simply listed the usual categories … plus perhaps a few more to be on the safe side. It may be on just this basis that Victoria Beckham’s VICTORIA BECKHAM Community trade mark is registered for (among other things), windscreen and windshield cleaning liquids, instruction manuals, key-ring fobs, decorations for Christmas trees, umbrellas and parasols. If you’ve got the registration, you have more control over what other traders try to do with your name than if you haven’t got it.  For more information click here.

ACID Member Robert Welch Designs was delighted to announce that its Signature knife range and knife block has won an iF (International Forum Design) product design award 2010.

The iF award is the latest success for the Signature range which, in less than a year, has won three other international awards – the GOOD DESIGN™ award (from the Chicago Athenaeum: Museum of Architecture and Design), a red dot design award and the Excellence in Housewares ‘Cutting Edge’ award.

Rupert Welch, Managing Director, Robert Welch Designs said,“At Robert Welch we always strive to ensure that our products function beyond expectation and we’re delighted that yet again this has been recognised by an international jury of design professionals using very strict judging criteria.”

www.welch.co.uk

ACID Member David Ajasa-Adekunle of Innovation Imperative has submitted one of his product designs in a competition to find an innovative product which will eventually be sold by both Tate shops and designer website CultureLabel.com David’s ergonomically designed mug is intended to be embraced with both hands and is also stackable. Innovation Imperative is an architectural practice nominated to exhibit selected projects as part of YOUNG ARCHITECT OF THE YEAR 2009 hosted by the Architecture Foundation.

The Tate and CultureLabel.com are collaborating to launch the 2010 edition of RELEASE and, this year the winning entry from each category will receive a cash prize of £500 plus commission on sales. The winning product could:

• Capture the experience of Tate visitors, be they young or old, from the UK or from across the globe
• Capture the impact that Tate has had on the public’s experience of galleries and its influence on the arts
• Be inspired by the architecture of the buildings, such as the iconic Tate Modern, which is 10 years old in 2010
• Be inspired by any of Tate galleries, which include Tate Modern, Tate Britain, Tate St Ives, Tate Liverpool and also Tate Online

Product designs must fall into two price brackets – up to £10 and up to £100 and the winning entry from each category will receive a cash prize of £500 plus commission on sales from 6 months in. For more information on the competition and to comment on David’s design click the link below.

http://release.culturelabel.com/view_submission.php?id=723

Congratulations to ACID Member Angharad McLaren Textiles which has recently opened a new studio at the Briggait in Glasgow city centre. Owner Angharad McLaren was previously commissioned to design and make blinds for the Shetland Museums’ Hays Dock Café and these have now been installed with new decor to match (see left). 

The modern space is a busy cafe bistro for Museum visitors during the day and provides fine dining in the evening with panoramic views of Lerwick Harbour. The blinds were designed to create a warm and vibrant ambience and provide insulation and acoustic absorption to make the cafe an even more pleasant environment for staff and customers.

Shetland Museum’s Hay Dock Cafe.

Angharad comments, ‘The starting point for the designs was the range of scarves I designed for the Museum shop during my Shetland residency. I developed this into a much larger scale design to suit the 8 large windows, each one measuring 2.2m wide by around 4m high. The textile design is inspired by the colourful moors of the Isles, influenced by their rich textiles heritage and woven in 100% Shetland wool.”  Angaharad continues ” The woven blinds embody the Museums’ ethos of providing art and design that is inspired by, reflects and celebrates Shetland’s culture and heritage and add to the rich variety of local artwork in the Museum which includes archive images of Hays Dock, custom-made peat ingrained tables with inlaid textile artworks and wire lampshades hand-knitted in traditional Shetland lace patterns.”

www.angharadmclaren.co.uk

Restaurant & Bar Design Awards to be held overlooking London’s new Olympic park

The winners of the second Restaurant and Bar Design Awards will be announced at a cutting edge ceremony at Westfield Stratford City, overlooking London’s Olympic Park on the evening of the 22nd June 2010. With nearly 400 entries from over 38 countries worldwide, the shortlist has been selected by a judging panel of the most influential editors in design, hospitality and style. Attended by the UK and world’ stop architectual, interior and lighting designers and their respective hotel,  restaurant and bar operators, the event promises to be the most innovative and exciting events in the design and hospitality calendar. Tickets are limited and may be purchased through the Awards website.

http://www.restaurantandbardesignawards.com/