Litigate or Twitigate?

Yesterday's Guardian reports the Davina-and-Goliath battle between designer "Hidden Eloise" and stationery giant Paperchase. The designer claims (understandably, to anyone with eyes in their head) that her character in the left hand picture was copied by Paperchase in the right hand picture. She complained to the company, but they declined to cease sales and told her that they had bought the image in good faith. Here is a link to their statement, which quotes the agency they bought the artwork from, who in turn pass the buck to the individual third-party designer.

Unable, as it seems, to afford litigation, she started a Twitter campaign. According to the Guardian, it became one of the top trending stories on Twitter - something that could cause reputational damage no company can afford in the long run. The third-party designer concerned has apparently written to Hidden Eloise to apologise for copying too closely.

Moving away from the specifics of this case, in general what should a large company do when faced with the all-too-common fact that one of their products involves, to the untrained eye, a prima facie infringement of copyright and/or design right of X? To say "I bought it from Y in good faith" and carry on selling is really not good enough.

Apart from being legally and morally wrong, it is a bad commercial solution, because the company is liable when on notice, and is racking up damages which, no matter how onerous their procurement contract conditions, they may not be able to pass on to Y if Y is a small designer. If X ultimately musters the courage and the finances to sue, X, Y and the company will all lose money, and the only winners are the legal professionals. It is also a bad reputational solution, because companies selling well designed products benefit from their association in the mind of the consumer with designers whose products they market - and lose that benefit with the speed of a deflating Zeppelin when they visibly condone IP infringement.

There is only one answer - act quickly and in good faith, and take down the product while you investigate.

And for the small designer: Twitigation - an alternative to litigation?

UK Litigation Statistics - we stand corrected

Trevor Cook of Bird & Bird points out that the EMW Picton Howell litigation stats we quoted in our recent post tell an unrepresentative part of the whole story. The Lord Chancellor's Dept/DCA/Ministry of Justice statistics on IP litigation (which we summarise in tabular form) show that 2006 was a terrible baseline year to choose - the increases in 2007 and 2008 merely restore the position earlier in the decade. These and many other fascinating things are to be found in Trevor's very readable "Users' Guide to Patents". Thanks, Trevor, for putting it in perspective. Are these variations statistically significant at all, or just noise? Comments welcome as always.

Reform of UK design litigation

The very wonderful Ipkat has a link to the User Group proposals to reform the Patents County Court, for lower costs and higher speed.
The PCC was set up for precisely this, but an unintended consequence of the Woolf Reforms was to turn it into a High Court clone, with little scope for cheaper procedures better suited to SMEs or litigants in person.
Since the appointment of Judge Fysh, author of the 5th Edition of Russell Clarke on designs and one of our great design jurists, there has been a policy of routing design cases to the PCC, and when Section 27A of the Registered Designs Act comes in, he will also get all appeals from the Registry (which currently go to the Registered Designs Appeal Tribunal). We will then have a unified design court for England and Wales under Judge Fysh.
Sounds great - except that, as CIPA said back in 2005 when the idea was floated, the costs regime would go from nominal costs on a scale as in the Intellectual Property Office and on Trade Mark appeals to the Appointed Person, to the much higher spending, higher risk High Court system of costs, vastly increasing the downside risk of litigation.
Well, I am delighted to say that the proposals involve going to the scale fee system, not just for design appeals as CIPA suggested but for everything. I think that will really make a difference - UK justice will become affordable to SMEs again.

If you agree, please send your comments to:

Philip Westmacott,
Bristows
100 Victoria Embankment
London EC4Y 0DH
or by email to:
philip.westmacott@bristows.com