Copyright issues

'Is it legal', 'can I do this' type questions and discussions.
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Copyright issues

Post by Perfectlycrafty »

Hi Everyone.

We run a small successful laser business here in the UK and last night had another company email us to say that we have used one of their designs which they have copyrighted. They sent us a copyright certificate which is dated 22/12/2022 and we have been selling our design since July 2022.

This is our one:

[img] ... 1658837225[/img]

and this is their one:

[img] ... b~mv2.webp[/img]

They obviously are different, but I can see why he thinks we 'stole his design'. Back in July last year, we had a customer ask for us to change our paw shape (which we've had for sale since 2015), make it 3d, add a name and a section for the hook at the bottom.

I was just wondering where we stand on this?

There's also plenty of other designs, more similar to his than ours which are for sale, so I imagine he's hunting them all down.

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Re: Copyright issues

Post by AndyJ »

Hi Perfectlycrafty,

Ideas alone are not subject to copyright, only the expression of the idea. So for instance if you described your design to me over the phone I am unlikely to produce something which is identical to your design, and depending on how detailed you description was, I might produce something that looked a lot like both of your and the other design but I would not have copied either of them, only your idea as described on the phone.

In some circumstances a court might be persuaded that you must have copied the other design* but there are two factors which weigh in your favour. Firstly if you can show that your design was created before theirs obviously there can be no question that you copied their design. Since they have gone to the trouble of registering their design for copyright purposes, that is obviously the point at which they say that their design came into being and they can't now backdate it. And secondly if you can show that this type of sign is commonplace then it means that their design lacks originality and it could equally be argued that they must have copied one of the earlier designs (possibly even yours!).

In other words I don't think their claim has any merit whatsoever.

You mention that they have registered their copyright. This has very little evidential weight with respect to either authorship or originality, since anyone can claim that they created any old design or artwork they actually just found on the internet and then register it. However there is an entirely separate intellectual property right called registerd design right (RDR) which is administered in the UK by the Intellectual Property Office (there is a separate scheme within the EU). If they had registered their design under this system their claim would have a bona fide precedence date and claim to title which a court would recognise, but even with RDR, if you are able to show, as here, that your design predated their registration you would not be liable for infringement and indeed their registration would then be cancelled as it was not original enough to qualify for RDR.

I hope this helps.

* As an example of such a case, see here: Bodo Sperlein Ltd v Sabichi Ltd . Note that in that case an important factor was that the claimants, Bodo Sperlein, were able to show that the defendant's designer had had the relevant access to the Bodo Sperlein designs before producing her own version.
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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