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Angry person claims I copied her Design

 
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War Horse
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PostPosted: Wed Apr 06, 2011 4:52 pm    Post subject: Angry person claims I copied her Design Reply with quote

Hi there, I hope someone can help me? I'm at a loss as to what to do about the situation I was faced with yesterday.

I have recently been in the process of setting up a business printing t shirts to the equestrian trade. I havent sold anything yet, but my website is running without a payment facility for feedback purposes, and with the intention that once its complete and I'm registered as self employed people will be able to buy my garments. It started out when i worked on a temporary basis for a company that printed sports kits (rugby and football etc). My friends who own horses asked me if I could print hoodies with their names and their horses names on the back. The company I worked for said they didnt have time for small individual garments, so at home I did some nice t shirt transfers for them.

I was later asked for images on hoodies, and word got around, I loved what I did, figured I could make a career of it as I do have design experience. The company I worked for is owned by a friend, and he has backed me all the way (he still does now), even recommending third party suppliers etc.

Last summer someone asked me to print a safety vest for her to take out with her horse, with the words "Polite, please pass wide and slow" on the back. It has navy checkers on it, and from a distance looks like "POLICE". I did as she asked, off the cuff based on the description she gave me, and about 3 months ago uploaded it onto the dummy website, with lots of other safety vests.

Yesterday my housemate answered the phone to a woman who was abusive, aggressive and claimed that I had been on her website and copied her design, for which she owns the copyright. She refused to believe that it was not me on the phone, and threatened to "Sue the ass off me" if I did not remove it within 12 hours. She also left a message on my voicemail using the same words. I called her back, and she said the same again, swearing and adding that I should not be printing common horse phrases such as "Bucking hell", "Does my bum look big on this", or "Dressage Diva", and that given I have designs with such phrases on suggests that not only have I been stealing other peoples (commonly used) designs (I drew all the images myself, they are mostly adaptions of my logo), and that because I had ripped off so many other phrases, I had clearly been on her website and stolen her design too.

I have never ever been on her website until last night. My design uses similar words, but the garment is different, the font is different, and the words are different. I honestly have not copied her design, but she was so adamant that I had, I did as she asked and took it off my website. She demanded to know my surname which I refused to give, and called me back today to ask for it (I refused and hung up on her). Someone who lives nar to her offices also added me on facebook today and asked how the business was going, I have not as yet replied. I havent launched it yet, I havent sold anything online, I havent copied her design, and I have trawled the IPO website looking for the design but I cant find anything. I even rang another company (massive national wholesaler) that prints a similar design) and spoke to their managing director who was very sympathetic and said she was just throuwing her weight around.

But realistically, what right do I have if any? Can she Sue me for something I have never sold? Can she copyright the image if she created it since I created mine last summer? If it isnt identical does she have a case? As far as I was aware, having looked into copyright before i put anything online, if I havent stolen her image, it isnt a TM, the garment is not the same and the words are different, then I believed I was keeping my nose clean.

Can anyone advise me on this? Any help greatly appreciated.
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AndyJ
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PostPosted: Wed Apr 06, 2011 5:18 pm    Post subject: Reply with quote

Hi War Horse,
If you genuinely haven't previously seen her slogans then you can't have copied them, and assuming you are right these are not either trade marks or registered* designs, then it is up to her provide the proof that you have copied her work. The law allows for people to arrive at the same idea independently. It is only when the amount of commonality is very substantial (ie same typeface, same colours, same art work) that a court might be persuaded that this is copying, not coincidence. There is little chance of obtaining copyright in common words and phrases. I'm sure we have all seen the 'Polite Notice No Parking' type of signs so the idea behind your safety vest is a variation on the commonplace. I'm sure that most of your other slogans are also commonplace amongst horsey folk.
So on that basis you need do nothing at this stage.
You mention the fact that you haven't yet sold any of your desgns. Copyright infringement can occur when a copied work is published (as you have done on your website) and doesn't need to have been sold etc. However as I say I do not think this person has a viable claim for infringement. If she continues to harrass you with abusive messages this may amount to a criminal offence (threatening behaviour) so keep copies of any telephone messages, letters etc and make contemporaneous notes of what is said in any phonecalls in case you need to make a complaint to the police. At the very least you may be able to get a restraining order preventing her from contacting you if she persists.


* Unregistered Design Right - which is similar to copyright in that it is automatic when a design is created - cannot be applied to surface decoration.
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War Horse
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PostPosted: Thu Apr 07, 2011 9:11 am    Post subject: Reply with quote

Thats great, thank you!!

How would I find out too whether she really does have some kind of registered design, on the offchance that I just havent found it? Any suggestions for the category? Also, if the words are not identical, the colours are different (hers is silver and blue, mine is white and navy), the font is different and the garment is different, what specifically can she claim to, other than the concept?

Also, I cant find anything to explain the following in any more detail:

* Unregistered Design Right - which is similar to copyright in that it is automatic when a design is created - cannot be applied to surface decoration
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AndyJ
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PostPosted: Thu Apr 07, 2011 10:11 am    Post subject: Reply with quote

Hi War Horse,
I would expect someone who had a registered design would tell you that that was the case. If she has given her name then you can search under that, or failing all of that, you can do a manual search on the IPO website. The design class will be 02 - Clothing, and I would expect the sub-class to be 02 - Garments (99 Miscellaneous is also possible). Below that there are two main options to my mind: Sportswear and Miscellaneous. To search these designs, some of which are pretty ropey drawings, follow the path Designs > Online Design Serrvices > Find Design By Class, then use the drop down menus to select the class and sub class you want to search, and assuming the 'Combination' is set to Locarno*, click the Submit button and a screen-full will appear. In the two cases I mentioned above (Garments - Sportswear and Miscellaneous) there were only 173 and 137 designs respectively so it won't take too long to search. I did a quick search and didn't see anything which appeared to be like the disputed designs. The nearest seemed to be this:http://www.ipo.gov.uk/rs-bin/RightSite/getcontent/090024da801bb35c.gif?DMW_OBJECTID=090024da801bb35c&DMW_FORMAT=bvgif&DMW_PAGE=.
Incidently, unlike copyright, Registered Design Right is only infringed if the disputed item is being sold for gain. So at this stage you cannot be sued on that basis. The other person cannot now register her design, because yours is already in existence and available to be viewed by the public. Perhaps I should say, she may be able to register it, but the registration will be invalid and open to challenge by you or anyone else.
I have not mentioned the parallel system of Community Registered Designs and Community Design Right, mainly because if the design(s) are not registered in the UK then the Community system is irrelevant to you..
Finally you asked about Unregistered Design Right. This is described briefly on the IPO site under 'Design Right'. Basically this is a right which comes into existence when an novel design for a three dimensional object is created in permanent form (eg a drawing or sketch, or prototype model). This is similar to how copyright works. But because it is a very broad right there are limitations on it. One of which is that it only applies to the overal shape and conformation (configuration in the terminology) of the item, and not the surface design. Since the bibs or waistcoats, which I assume form the basis of your garments, are already commonplace they cannot themselves be subject to to design right.

*Locarno is the name of the international classification system which is used in the UK.
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War Horse
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PostPosted: Thu Apr 07, 2011 12:44 pm    Post subject: Reply with quote

Andy you are my hero.

Thinking back to what she said on the telephone, she actually said she designed this a year ago, and registered the copyright. I cant find anything online in the categories mentioned (searched them comprehensively yesterday), and looking at the date I created the image, 20th June 2010.... she didnt launch her range until end of March 2011. Therefore I cant see that it was in the public domain prior to last week anyway, and I've never met her or used her computer.

Does that mean she's potentially copied MY design? Also, when you say "it only applies to the overal shape and conformation (configuration in the terminology) of the item, and not the surface design. Since the bibs or waistcoats, which I assume form the basis of your garments, are already commonplace they cannot themselves be subject to to design right".

Does that mean that the writing on the bib cannot be copyrighted or claimed as a design right either?

I really really appreciate your help Andy. I can honestly say I owe you thanks for my first decent night's sleep since the weekend (thank you, thank you, thank you!!).
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AndyJ
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PostPosted: Thu Apr 07, 2011 2:39 pm    Post subject: Reply with quote

WH,
Just to make it entirely clear I would like to summarise what I think applies here:
Copyright. This could only apply to the words of the slogan, if they were 'original' (meaning the product of a creative mind) and not normal every day phrases. If they passed this test (which i don't think they do) they would be classed as literary works. I think there is no doubt that the rest of the get-up - colours, layout etc - will neither qualify as an artistic work, nor since your layout fonts etc are different, can there be a substantive claim of infringement of an aritstic work. A recent court case held that as few as 11 words (in a newspaper headline) could be copyright, but previously it was held that it would require quite a few more words to qualify as the expression of original thought. The danger is that free speech will be adversely impacted if the limit is set too low. You say that this woman claims to have 'registered the copyright'. If that is what she said (and meant) then she is misinformed. In the UK, copyright does not need to be registered. Indeed there is no official agency (such as the IPO) where it can be registered. There are some private companies who will effectively offer to hold a copy as proof that a work existed at a certain date (the registration date) but that is all that process establishes. It doesn't prove that the registrant is the legal owner of copyright, not does it prove that the work is eligible for copyright.
Trade Mark. You have found no evidence that these designs are registered trade marks. In any case it would be an inappropriate use of the trade mark sytem to register what are effecively designs. I think most people understand the purpose of a trade mark is to increase brand awareness and there is no element of that in these designs.
Design. As mentioned there are two separate parts to this. Registered Designs are governed by the Registered Designs Act 1949, and (unregistered) Design Right was brought into being by the Copyright, Designs and Patents Act 1988.
Let's just assume for a moment that this woman meant that she had registered the design. If she had done there will be a copy of it on the IPO register which I explained how you can check in the previous post. Obviously if you have her name this may assist the search. You can also contact the IPO stafff for assistance. So staying with the assumption that she has successfully registered the design, it may be open to you to challenge the validity of the registration on several grounds. You can do this at any time, including as a counter-claim should the matter go to court. If your design predates hers, even if yours is unregistered, this would mean that her design no longer meets the criterion of being 'new' when it was registered. However your design would have had to have been 'made available to the public' prior to the date of registration and be sufficiently similar to hers that an informed user not would consider them to be different products. The second reason the validity could be challenged is that the design fails the 'individual character' test. This is substantially the same informed user test as mentioned above, but applied to the whole field of similar clothing available to the public. An example would be to think of Ugg boots. When they were first introduced their design was sufficiently different from other boots on the market to make them distinctive, where as now there are many lookalikes available and the original Ugg design could not be registered today.
There are some other grounds for challenging the validity of the registration but I won't go into them here. So the next assumption is that her registered design is held to be valid. Does your design infringe? The primary test is that already mentioned: does the informed user form a different impression of your item when compared to hers. The informed user is someone familar with products of this type, but not necessarily an industry expert. Here the degree of similarity is less than with copyright. With copyright it would have to be virtually the same words (say in one literary work compared to another) whereas with registered designs, it is the impression which counts. So different colours or fonts may still give the impression of it being the same design, just applied in a different way (think of the various shapes of the Coca-Cola bottle which have come on the market over many years: all would cause the average person to associate them with the Coca-Cola brand, despite the differences). If your design fails to be distinctive at this stage, all is not lost, because it is a defence that your design is not currently available for commercial purposes ( a bit debatable since you are intending to market them at some stage). Unfortunately, unlike copyright there is no defence in having arrived at an infringing design by coincidence; registered design is a monopoly right. However if infringement is found to have taken place, but you can show that you neither knew about the design beforehand, nor were there reasonable grounds for you to suppose that the design was registered, then damages will not be awarded against you, and the worst you face is an injunction not infringe the design in the future, and for any garments bearing the design to be forfeit. So lots of ifs and buts there! Registered designs can have protection for a maximum of 25 years, subject to 5 yearly re-newal, and costs 20 per item in registration fees.
That leaves Unregistered Design Right. This is very simple. It is automatic assuming that the work has the necessary qualities of novelty and distinctiveness, and has been recorded in some way. But it cannot be applied to surface decoration. For instance the juxtaposition of two colours on a track suit was found by a court to be not protectable under design right. On that basis, I do not think infringement of unregistered design right can be claimed since the wording is clearly two dimensional and does not form part of the shape or configuration of the item.
I hope this clarifies things.
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six gun
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PostPosted: Sat Aug 13, 2011 1:07 pm    Post subject: Reply with quote

This is an interesting thread. A previous poster on a tee shirt forum I belong asked about using quotations from films.

The previous ruling cited here where 11 words were sufficient to be a unique literary idea would suggest to me that quotations like.


"Of all the gin joints, in all the towns.."

or "Well, here's another nice mess you've gotten me into"

are insufficient to be copyrightable.

Both are very recognisable but both are less than 11 words long.
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