Intellectual protection of book cover design

[InNeedofAdvice]

I have a company that produces personalised mugs as gifts. We are looking to expand our range of designs and would like to include some literary-inspired products. We surveyed our customers and responses show they would like designs in the style of old penguin classics range (the ones with the 3 horizontal bands of colour)
We would like to find out whether these book cover designs are protected - however there is not much information available online as all the penguin copyright information seems to cover the text and story of the books, not the cover designs
Some people appear to be using designs that are similar to these already (e.g. www [dot] notonthehighstreet [dot] com/sewveryenglish/product/personalised-kindle-case-classic-book?utm_source=GoogleShopping&utm_medium=Fashion&utm_campaign=165926&gclid=CPDKisKM2rkCFUXKtAodVzQAUg) but we're not clear if they are an infringement or not

In particular, we would like to know:
• What kind of intellectual protection are the penguin book cover designs eligible for (Eg. Can something as simple as 3 stripes of colour be protected as an ‘artwork’? Or is it only eligible for design right protection? Also, is it eligible for trademark protection?
• Given that the penguin book covers were designed in 1935 by Edward Young, who died in Jan 2003, are the cover designs currently under any form of protection?
• If the cover designs are currently under some form of protection, which elements of the design specifically are protected?
• If we were to use a design with
- Three stripes of colour (cream/white in the middle but not necessarily orange on the upper / lower bands)
- Writing on the middle band (not necessarily of published titles and authors)
- Our own logos at the top and bottom (definitely not the penguin ones)
would this be breaching of any of Penguin’s rights?

Many thanks in advance for any help & clarification you can provide,
Many thanks

Katie

[AndyJ]

Hi Katie,
Firstly a public apology for not noticing this thread earlier. Not sure how it got overlooked.

Coincidently I replied to a somewhat similar query earlier this year, by using the example of a Penguin book cover, so you might want to take a quick look at that thread: http://www.copyrightaid.co.uk/forum/topic1426.htm.
My conclusion then - and now - is that reproducing the distinctive bands of colour, plus the use of the same typeface for any new wording in the title area, would not infringe copyright in the Penguin classic books. Similarly, so long as the Penguin logo was not used, there were no known trade mark or registered design right issues if just the coloured bands were used on products other than books.
However when I wrote that I was unaware that Penguin themselves sell merchandise such as mugs. This knowledge adds a significiant complication to your question, since if you now produce mugs which display significant similarity to the Penguin authorised goods, there is a real possibility that this could lead to an action for passing-off, brought either by Penguin Books themselves or their authorised licensee. In other words, they may claim that you were passing-off your mugs as being products originating from Penguin and/or their licensees, and this would be an entiirely separate issue to the original books.
In light of this I suggest you would be wise to explore the idea of getting a licence to produce your mugs, as this would eliminate any chance of a complaint of infringement or passing-off. Should you decide to follow this up, try contacting the Permissions Department at Penguin Group (UK), 80 Strand, London WC2R ORL.

[InNeedofAdvice]

Hi Andy,

Thank you ever so much for your detailed response - it was incredibly helpful and very much appreciated!
Many thanks,

Katie