Community Designs - consultation on "innocence"

You infringe a design, by selling product you bought from someone else, without knowledge that the design was protected. Should you pay?
That was the issue in J Choo (Jersey) Ltd v Towerstone Limited and Others [2008] EWHC 346(Ch), concerning counterfeit handbags. There is an "innocence" defence in the UK for most forms of IP infringement (copyright, registered and unregistered UK designs and patents), exempting the infringer from damages (though not other remedies) where he did not know and had no reasonable grounds to suppose that the rights existed, but the Court found none for Community designs. The IPO are consulting as to whether to add such a defence for Community designs, and a response is due by the end of September.
Obviously, it makes matters easier if like measures have like remedies. In the case of a Registered Community Design, where there is no mental element, I tend to think that there should be the same "innocence" defence as for other UK rights.
However, for an unregistered Community Design, where copying must have taken place, I don't see why there should be any innocence defence: someone, somewhere, was far from innocent, and caused damage to the proprietor. If the seller was innocent, they can contractually recoup from their supplier and so back the chain to the infringer. The life of the right is so short, at three years, that by the time an infringer has been found and put on notice, much of the life of the design has evaporated. Thus, I can see arguments against in the case of UCD.

Working Groups cease work

After many years, the Registry Practice Working Group (RPWG), which had inherited the mantle of the Designs Practice Working Group (DWPG), has now been dissolved. This wasn't at the users' request - these were, in my personal experience, very useful groups.
It was announced at the last (in both senses) meeting of RPWG in June. "Higher level" issues will now be discussed in a new forum called the Trade Marks and Designs Policy Forum. This will deal with policy (as the name implies) and also "significant legal and practice changes". However, "minor issues relating to registry operations and practice will be dealt with elsewhere" - apparently in an online forum.
What is one to make of this? UK trade mark and, particularly, design filings are much more by unrepresented applicants - domestic SMEs and individuals - than in the past, as large companies and foreign applicants have used the European or International routes. I suppose, therefore, that there is perceived to be rather less need to meet representatives. On the other hand, there is no one else to represent the unrepresented.
Perhaps the Registry has merely tired of discussing "minor", or what I'd call bread-and-butter, issues in person. I am generally a fan of electronic forum use. They enable wider consultations. However, I don't think they substitute for human contact. The RPWG and DPWG meetings were a two way street, and what we will miss is not what the Registry gets from us - we can say anything we need electronically - but the chance to recieve information and, more importantly, the feeling that we have been heard, and perhaps understood. I may have got this all wrong, but this move is close enough in time to the IPO's "IP Complaints" fiasco for it to feel like the Registry is trying to disengage from the professions - and if that is right, I suspect that, in the long term, both sides (and therefore, in the long run, applicants and the public) will lose out.

EU Design Consultation

OHIM's website brings news of a new EU consultation on design. Based on the Commision Working Document "Design as a driver of user-centred innovation", the consultation is open until 26 June.

Here's the opening of the Executive Summary of the Working Document:

The Commission Staff Working Document on ‘Design as a driver of user-centred innovation’ analyses the contribution of design to innovation and competitiveness. The results are compelling: companies that invest in design tend to be more innovative, more profitable and grow faster than those who do not. At a macro-economic level, there is a strong positive correlation between the use of design and national competitiveness.
Although often associated with aesthetics and the ‘looks’ of products only, the application of design is in reality much broader. User needs, aspirations and abilities are the starting point and focus of design activities. With a potential to integrate for example environmental, safety and accessibility considerations — in addition to economic — into products, services and systems, design is an area which deserves public attention.

According to the Commission, the Working Document "provides an analysis of the rationale for making design an integral part of European innovation policy." The aim of the consultation "is to find out whether more should be done at EU level in the area of design and if so, what." My answer is that more funding and training ought to be put into anti-piracy measures to stem the tide of ripoffs.