28 Cover Feature
are unlucky enough to be copied you Yet even a convincing win in the
don’t have to prove copy if you have courts is unlikely to recoup all your losses.
a registered design, whereas if you are “It is very difficult to litigate; taking
relying on unregistered rights you do legal action is expensive,
have to prove you own the design with a and you rarely get back
design audit trail, and you have to prove more than 70 or 80 per
that an alleged infringer has copied you.” cent of your legal costs,” says
Demonstrating that somebody has Macdonald. Therefore, stopping the
made a copy might sound simple enough, copyist at the earliest possible stage
but even if a design looks identical, the by demonstrating robust defences
courts will not necessarily agree that will protect the brand and protect the
it has been deliberately copied, but wallet. “Damages are hard fought for, and
perhaps has occurred owing to common our view is that damages are not high
influences. enough,” she adds.
Thus, relying on unregistered design ACID is lobbying for more damages in
rights is fraught with legal difficulties, as these cases, and a new law of ‘unlawful
witnessed by Gordon Munro, Commercial copying’. The organisation believes that
Director at Mark Wilkinson Furniture the introduction of criminal sanctions for
(WMF), when an MWF Cook’s Kitchen design right infringements, coupled with
copy was discovered on display at John the improvements in damages recoverable,
Lewis, Oxford Street. “We had taken would have a significant effect on the
photographs of the original prototypes, reduction of copying and dealings with
there were drawings which had been pirated goods in the UK, consequently
dated and so on, we could prove how strengthening the British design industry.
it was developed, but what was more
difficult was proving he [Woodcraft tReating the epidemic
Designs] had actually copied it. We used Copying is rife in the business, and of
private detectives to get admissions. You those cases that are disputed many are
have to do this very seriously, I’m afraid; hidden behind closed settlements and
you can’t mess around,” he adds. gagging clauses. “It’s a bit like the tip
WMF won the case (Wilkinson vs of the iceberg. Statistics only come
Woodcraft), which has since become from court judgements, but there are a
one of the foremost examples for tremendous number of settlements. Very
understanding the interpretation and few IP cases reach final court hearing,”
concepts of unregistered design right says Macdonald.
law. But from that point onwards, MWF This is frustrating for ACID since the
registered its designs to ease future public is never made aware of which big
disputes. “It is expensive,” says Munro, brands are abusing smaller company design
“but it’s not dramatically expensive.” rights. Culpable organisations are under
little public or legal pressure to behave well.
Robust defence But ‘Commission it, don’t copy it’,
Echoing comments by Chiselwood’s the name for the new autumn campaign,
Mel Holliday, Munro says, “We now use is a “win-win” situation, says Macdonald.
very strong lawyers. We used to “Major brands would see the benefit
be terribly nice about it. We of supporting UK design. It negates
used to write and say, ‘Excuse me, we legal challenge, the designer wins, and
think you’re copying one of our designs. the consumer wins, knowing they are
Would you please stop.’ They just supporting a named designer.”
laughed at you or ignored As in the words of Lord Brooke, there
you. But a fairly heavy may be no truer mark of a little mind
missive flags up the fact as the servile imitation of others, but
that we’re serious about designers must be justly rewarded for
it. And we are very, very their work. Plagiarism is theft – it should
serious.” be regarded as such. designer
Plagarism.indd 28 28/8/08 10:03:17
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