Copyright infringment or not?

Advice for those new to the concepts of copyright
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Quantum
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Copyright infringment or not?

Post by Quantum » Sat Aug 20, 2016 6:18 pm

Hi everyone I am new so bear with me.

I have a problem with a template I designed for cutting feathers.
I approached a "Friend" who had a laser cutter and asked him to make my design for me. He also sells his own products to the same industry that I do.
My template has different shapes on one side to enable me to cut different shaped feathers. There were about 6 shapes which also differed in length. He assured me he would not make them for anyone else. They sold very well :-) better than he thought they would. Then around 4 weeks later I saw other shops posting up on Facebook that they had a new type of jig that was great!
Imagine my surprise that they were my jig. Now there are some other jigs on the market that cut feathers but mine had a groove for locating the feather and another to trim it to a specific length, none of these other templates on the market have them so it is specific to my design. I approached the "Friend" and he said he hadn't made the same ones as he did for me, they were different shapes. I also told him I was designing some more shapes that he could make for me. (These shapes he produced before I gave them to him) The point is that they were my design and the design allows for different shapes thats the versatility about it.
He has owned up now that he shouldnt have done it and he was in the wrong and has recalled all the templates he supplied, except for 1 customer in The Netherlands who sent me an email telling me to "Piss Off", on 3 seperate emails. he continually posts pictures of them up on Facebook.

Question is,where do I stand and what can I do?

Any help would be gratefully received.

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AndyJ
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Post by AndyJ » Sun Aug 21, 2016 7:10 pm

Hi quantum,

I don't think there can be any copyright in your templates - they are too utilitarian and because they have been cut using a laser, they don't exhibit the necessary qualities to be classed as works of artistic craftsmanship.

Your protection lies in design right which undoubtedly applies even in the unregistered form. However the problem you face is that any infringement - if it occurred - was by your 'friend' in making and selling the templates without your specific permission, and not against the person from the Netherlands who bought the goods in good faith. Although technically the Dutch customer may be using infringing goods, you would first need to get a court to rule on that issue before you can take any enforcement action against him. He seems to have demonstrated his unwillingness to co-operate, and so I think it would fairly pointless sending him more demands to return the templates he has. Theoretically you can invoke the Community Design Right, making it simpler to take action in a Dutch court, but I think the expense would outweigh any benefit you might get, as I think the most the court would be likely to do is order the templates to be surrendered. There would be no financial compensation because he did not knowingly buy a product which infringed your design.

As for what you do about your 'friend', I think you have to weigh up the court costs against the potential gains. Because he took remedial action to try and recover the templates he had sold, a court may well feel that that showed a degree of contrition and might be inclined to leave matters at that, since presumably he will have had to have reimbursed his customers, so made no real profit.. Much will depend on the amounts of money involved, which I suspect are not that high.

For the future make sure you draw up a simple agreement with any supplier and/or contractor which makes it clear that you retain the design right in any item you get someone else fabricate for you.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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