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IPR and copyright
Posted: Mon Jul 19, 2010 9:59 pm
What can I do if someone reverse engineers one of my designs and post the said design on a yahoo group claiming to be his own work as a variation of some one elses work. The person has already admitted on the same Yahoo group that he had previously reversed engineered the design some time ago. But kept quiet when I suggested I would take legal action. The published design could affect my business. I own the IPR and I believe that my orignal drawing is copyright too. The design is not Patented.
Posted: Fri Jul 23, 2010 6:52 pm
I'm not clear what you mean by reverse engineering one of your designs. Has someone taken a physical article apart to discover the internal parts, from which they have made design drawings?
Just so we are clear, there are several different forms of IPR protection which may be applicable here.
Copyright. Copyright is normally applicable to works of literary, dramatic, musical or artistic creation, which can also include software and databases. It is possible that a design, in the sense of a 2-dimensional drawing would qualify as an artistic work, but you seem to be also referring to the product which has been made from the design. There is no specific protection under copyright law from having your work reverse engineered. In fact by introducing the word engineer, the chances that whatever it is qualifies for copyright protection are greatly reduced.
Patents. You mention that your design is not patented. Strictly speaking a design alone can't be patented - it has to be a new invention that is capable of industrial application, so devices, processes, methods and chemical compounds can all qualify if they are sufficiently novel. And of course a design drawing would form part of the specification of the invention. As you know patents have to be applied for and applications are subject to a rigourous process of examination to make sure they meet all the criteria of novelty, practicality etc.
Design Right. This seems to be the most likely are in which your IPR may be protected. There are two separate forms: Registered Design Right (RDR) and Unregistered Design Right (UDR). As the names imply RDR needs to be applied for, whereas UDR is similar to copyright in that it automatically exists at the time the design is first recorded in permanent form. Since you didn't mention that your design was registered, I will assume it isn't. However, just so you are aware, a design can be registered at any stage during the first 12 months after the design is created.
UDR. The qualifying criteria for a design unde UDR are fairly wide. It covers 'any aspect of the shape or configuration (whether internal or external) of the whole or part of an article' (s. 213(3) Copyright Designs and Patents Act 1988). The protection lies in the outward appearance of the article, not its underlying function or concept. Nor are the methods and prinicples of construction of the product covered by UDR. So if someone else creates a product that does the same thing as something you designed, but it doesn't look anything like your product, UDR is not much help. However if the design is fundamentally the appeal of the product, then UDR may protect. A good example might be the strip of a Premier league football club. A fan would be more interested in the appearance of the shirt even if a slightly different fabric or stiching was used to manufacture a copy of the real thing. The club which owned the design right could take action against a shop or supplier which was selling shirts made to their design, without permission.
So after that very quick run through of some areas of IPR protection, it would be helpful if you could clarify what type of product you have designed, and what exactly you are trying to prevent; is it the publication of your design (which might well be an infringement of your UDR), or is it the manufacture of products made from your designs, which would only be an infringement of your UDR if their outward appearance was the same or substantially similar to your design.
Posted: Sun Jul 25, 2010 9:01 pm
Thank you for your detailed reply.
I can see that I may be a hiding to nothing. So I will just have to hope that the copyright infringement doesn't do me any harm.