The Designer Strikes Back

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Are you a designer or an industrial manufacturer and have you been scratching your head recently at all this talk of section 52 of the Copyright, Design and Patent Act 1998?

Well, here is the jargon free low down on what it all means for you.

Re-pealing?

Section 52 had the effect of limiting copyright protection for designs that had been “industrially exploited” (i.e. had more than 50 articles manufactured and sold) to 25 years. “Industrially exploited” designs are often those that have been used in the mass production of products.

The period of 25 years is considerably less than the term of protection afforded to most other copyright works – the creator’s life plus 70 years.

The repeal of S 52 would mean that those designs that were previously limited to 25 years of protection will now be afforded the same protection as other copyright works – i.e. life + 70 years.

Does this matter to you?  Yes, if you are a designer or a vintage/replica seller!

Attention Designers

If you are a designer of a product that has been sold on the market for over 25 years and you thought that you no longer had protection over your design, that is no longer correct.

Your design may now be protected under the Copyright, Designs & Patents Act 1988, even if it has run out of registered or unregistered design right protection.Table

You will also find that the repeal has “retrospective” effect, so if you know of a particular replica manufacturer who has been using your designs and you were unable to stop them, you might now be able to so!

That being said, all replica sellers will have until the 28 January 2017 to sell off their existing stock. You will only be able to seek to protect your designs from infringers after this date.

If your business is involved in design, give Virtuoso Legal a call to discuss your options.

Beware Replica Manufacturers/Sellers

If you have been, or have been planning to, manufacture products which incorporate designs which you previously thought were now free to use – you will now need to do some thorough checks, otherwise you may infringe the originator’s copyright.

This could be particularly problematic in industries such as the furniture industry where furniture designs tend to become trendy and the lines between various manufacturers’ designs become blurred. In such situations it is best to err on the side of caution and do your due diligence on the design of your product, where it comes from, and when it was first designed.

It is possible that the design you are using at the moment infringes someone’s design which has now come back under copyright protection.

Do not worry, all is not lost if you have received warnings from a designer.  In particular, the designer will have to prove that their furniture design for example has:

1) artistic quality; and

2) is a work of craftsmanship.

This is not the easiest threshold to fulfil, as a work of craftsmanship in copyright law requires the demonstration of training, skill and knowledge.

If you are a replica manufacturer that needs more information on how the repeal of section 52 affects your business, please do not hesitate to get in touch with Philip Partington on 0207 412 8372.

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