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Known brand used my product in catalogue, no credit

 
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Betsey33
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PostPosted: Fri Jan 18, 2013 9:14 pm    Post subject: Known brand used my product in catalogue, no credit Reply with quote

Hi, a well known UK clothing brand has used my product as a main styling prop in their new printed catalogue, they haven't acknowledged or credited my company as being the maker of the item - should they have done so? Are they breaching copyright? They are not claiming the product as their own, they bought it from me, but did not state that they would be using it for marketing/styling their own lifestyle/clothing.
Should I contact them?
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AndyJ
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PostPosted: Fri Jan 18, 2013 11:00 pm    Post subject: Reply with quote

Hi Betsey,
I'm sorry not to be able to offer a more strongly positive answer to your problem.
When you say that the clothing company is a UK one, I assume that their catalogue is also published here. On that basis my comments relate mainly to UK law on the subject.
Copyright
Unfortunately you don't tell us what your product is, so I can't be sure if it would be protected by copyright. If it is mass-produced item such as a tennis racket or a bicycle then it won't be protected by copyright - see below. But if it is an item of artistic craftsmanship such as hand made jewellery or hand made millinery etc then it should be covered by copyright. By reproducing your copyright work of artistic craftsmanship in a 2 dimensional image in their catalogue without permission, it is probable that this is infringement, provided that a substantial part of your work has been copied, and it is not possible for the company to argue that inclusion of your product was incidental. Much will depend on the prominence and positioning of your product in the images, facts which only a court can definitively decide. In UK law there are two specific cases which come to mind that demonstrate how tricky this area is.
In the first, FAPL Ltd v Panini UK Ltd, a company which produced collections of stickers featuring famous footballers arranged for some photographs to be taken of players in their team shirts. The Football Association Premier League (FAPL) successfully argued that because the resulting photographs showed the FAPL and club logos on the players' shirts and these were included without permission, Panini had infringed the FAPL's copyright. The court rejected the defence that this was incidental inclusion because it was said that pictures of the players without these logos on their clothing would have materially altered the appeal and value of the stickers to keen collectors. In the second case, Fraser-Woodward Ltd v BBC & Brighter Pictures Ltd, it was alleged that a number of photographs of the Beckham family, the copyright of which belonged to Fraser-Woodward, were copied by being included in a programme made for the BBC by Brighter Pictures. The issues raised in court were much wider than just the matter of whether some of pictures shown in the programme were included incidentally, but with regard to one particular image (referred to as Beckham 14) the court found that inclusion of this image was indeed incidental due to the fact that the image was on screen for a short time and the framing of the shot, which was of a newspaper front page, did not emphasise the image particularly. However overall this didn't matter because infringement occurred in respect of the other images.
So if your products are not mass-produced then copyright may apply to them and you may have grounds for a claim. Just for completeness it is also worth ruling out other forms of intellectual property rights.
Trade Marks
Trade mark law is also not terribly useful here because although you may have a trade mark for your business, individual items which form your range of products are not actually covered by this form of intellectual property law, unless the trade mark consists of the physical product itself (for instance, like a glass Coca Cola bottle). If the clothing company used your product with the logo or other trade mark clearly visible then that might be sufficient for a case of trade mark infringement, in that the public might be confused that your goods actually originated from the company publishing the catalogue.
Passing-Off
This is somewhat similar to trade mark infringement but relates to wider aspects of a brand, especially where there are no registered trade marks involved. Again the issue is whether the public would be confused about the origin of your goods. But I think in this case, because there no evidence that the other company is effectively trying to mislead the public, a passing-off claim would be hard to prove.
Design Right
For articles made by an industrial process, protection can come from registered and un-registered design right in the UK, and across the EU in the form of Unregistered Community Designs (UCDR) and Registered Community Designs (RCDR). However neither of these forms of protection cover the circumstances you have described; they only cover cases where some other company has copied your designs to manufacture similar or identical products, and has tried to sell them within the EU.

And finally, yes I believe the other company should have included a credit for your company's products, if only to reinforce the point that they are not passing-off your products as theirs, or intending to infringe your trade mark(s).
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typonaut
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PostPosted: Sat Jan 19, 2013 12:23 am    Post subject: Reply with quote

Questions like this are really difficult to assess because there is a lack of fact and consequently a lot of speculation. More information from the original poster would help clear this up.

Not least we have the open question of what type of protection this item may have, or if it even has any intellectual property right protection in the UK at all.
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Betsey33
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PostPosted: Sat Jan 19, 2013 10:45 am    Post subject: Known brand used my product in catalogue, no credit Reply with quote

Thank you to the two people who took the trouble to post replies (I'm new to the forum and not used to using forums at all).
My product is a children's play tent, it has been used as the main focus of a page in a catalogue, I'm happy with the photo, my product looks great, just would have liked a credit. I am worried that if they get enquiries about the teepee they may produce their own if there is a demand.
The product is my own design, but obviously not a new idea, although I have designed the pole construction to my own specifications.
Thanks again for your information.
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AndyJ
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PostPosted: Sat Jan 19, 2013 11:29 am    Post subject: Reply with quote

Hi Betsey,
Many thanks for the additional information about your product. I don't think a tent would qualify as a work of artistic craftsmanship under UK law, but it would certainly be protected by design right, so you may have some protection there if this other company were tempted to copy your design and manufacture a similar tent. Let's hope that is not going to happen. You can find out a bit more about design right - both the automatic unregistered version, and the stronger registered version - here. If you do encounter problems with people copying your product, especially any novel features, try contacting this industry body: ACID
It's hard to advise you on what to do next. Since these catalogues have already been published it's too late to get the credit printed in them, but you could write and ask them to make sure that an acknowledgement is included in a future print run or in any other materials (such as future magazine advertisements) which are planned.
Good luck.
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Betsey33
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PostPosted: Sat Jan 19, 2013 12:10 pm    Post subject: Reply with quote

Thank you! Much appreciated.
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typonaut
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PostPosted: Sat Jan 19, 2013 4:03 pm    Post subject: Re: Known brand used my product in catalogue, no credit Reply with quote

Betsey33 wrote:
I am worried that if they get enquiries about the teepee they may produce their own if there is a demand.


This is always a problem with products that are generic, or fall through the gaps of intellectual property protection in some way. One sees this most often in the UK with supermarket own brand products - I understand that this is not such a big issue elsewhere in Europe. The supermarkets bring in a new product, it does well, and then they start making their own branded version of it, with similar packaging, and put it on the shelf next to the independently branded version (or just drop the distribution of the independently branded version).

So, in this type of scenario you are having the trade-off between having good distribution of your product, and the risk that the retailer may copy it and manufacture it themselves. Hard to weigh up the risks - but I think that if you are a creative person you need to concentrate on getting your existing designs distributed, while also developing your ideas for your next product.

As Andy says, it's doubtful that any copyright protection would exist in a tent. What you may have a claim for is trade mark infringement, or passing off, if it looks like the retailer is using your trade mark to enhance their own business. I think if they are just using your product as a prop it is unlikely that you can claim for trade mark infringement or passing off. I think it is also impossible for you to claim for an infringement of design rights unless the retailer is manufacturing a copy of your design.

If you think about a scenario: in a fashion shoot a couple stand beside a Ford Mondeo drinking wine. Do we really have to get permission from Ford, the wine vendor or the manufacturer of the wine glasses to include these item in the shot?

I think the answer is: only if we are linking our clothing brand to the brand of these other vendors.

I frequently see magazine fashion shoots where there is a list of featured clothes, from different vendors, but then it might add "shoes, model's own" or "scarf, photographer's". These additional pieces of text are probably only there in order to give the reader the information that the editor doesn't know where you can buy them, or that they are not part of the feature at hand.

In the shot that you are concerned with, if your product is clearly identifiable (logo, or name etc), think yourself lucky that you got some extra publicity, and you may get some sale from that. If it isn't, perhaps some of the potential buyers will contact the retailer and ask, and they may pass them on to you.

As Andy states, it is also worth asking (they may just say no, and/or not feature your product again), if you could get a little credit on the shot next time it is used (or make sure the logo is clearly shown). Or, why not ask them if they would like to start selling it? Treat it as an opportunity to expand your sales rather than an opportunity to have a row over something that you can do little about.
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