Protecting Your Designs: Keeping the Plagiarist Parasites at Bay, an Education

Plagiarists are the parasites of the design and creative worlds; their copying, theft and ripping off of original designs can mean the difference between a commercially successful designer, and one who wallows in the workshop over opportunities missed.  But we cannot place the blame solely at their plagiarist’s door.  As designers we must accept a large part of the responsibility for ensuring that we do not leave ourselves open to these freeloaders, but protect ourselves as thoroughly as possible, seeking the appropriate advice from patent attorneys and, should a design be infringed that we thought we had protected, taking the correct course of legal action.

Here, we seek the advice of one such patent attorney.  Hampshire-based Nigel Brooks is a patent attorney with some thirty years experience, representing clients from all corners of the world.  A qualified engineer himself, having studied Engineering Science at Oxford, followed by three years as a mechanical engineer in the car industry, Nigel understands the world of design and invention from the creative, not just the legal side.  Patent agency is half engineering and half law, so Nigel would appear to be the perfect source of advice.  Nigel gives us an overview of some of his decades of experience and learned wisdom in his own words…

“Industrial designers scarcely existed 30 years ago.  That did not prevent some classic designs being created, such as Sir William Lyons’s Jaguars and Spen King’s Range Rover.  Those who did accounted for some terrible car designs in the seventies that are best not even mentioned at all.

Designers now have a major influence on so many products that we have around us on a day-to-day basis.  It is wonderful how easily a design can be progressed from a CAD concept to a 3D model, a mould and a finished moulding without the pains – and skills – of conventional prototype designs.  So, provided a few basic engineering principles are remembered, such as the effects of beam stiffness and centres of gravity  (I would say that, wouldn’t I?!),  wonderful products can be brought very quickly to market.

They can also be copied very easily.  The plagiarist short cuts the still considerable toil and tears of getting to prototype stage – and believe it or not this old fuddy-duddy of the clay model era – does recognise that there is a huge amount of that, to say nothing of creativity and entrepreneurial investment.  So, the question is, how to frustrate, sabotage and ultimately prevent the copyist?

In England we do not have laws of unfair competition such as exist on the Continent.  In France for instance if you are a market leader with your design and have a great reputation, the plagiarist can be stopped purely and simply on the basis that the public are liable to confuse the slavish copy with the original which has received so much exposure.

Here we have more limited ability to prevent copying.  Nevertheless, we have some potent weapons:

Registered Designs

These are the Cinderella of the Intellectual Property – IP – system.  However, they are very easy to put in place and are powerful.

Suppose you design a new kettle.  Its external appearance is bound to have aesthetic appeal, which is, in effect, a prerequisite.  Take photographs or view from your CAD model, send them to the Designs Registry here or in Europe; or respectively, together with the requisite application form and fee, and they will send you a nice registration number.  Engrave the number in your tooling and you have an immediate “Keep Off the Grass” warning.

Now, if Mr Plagiarist is unwise enough to produce a copy; he can receive an immediate “cease and desist” letter and should he choose to ignore the notice, he can be taken smartly to the Patents County Court by your patent agent/attorney and be told to stop.  It is important to remember that only a small minority of cases go to the extent and expense of a court action.

Design registration is a simple system and it works – as many examples in my files show.

Unregistered Design Right

In years gone by all products made to copyright drawings were protected by virtue of three-dimensional reproductions of them being considered an infringement if they were unauthorised copies.  Copyright was effectively indefinite – life of the author plus 50 years (in those pre 1988 days).  Such long protection was thought not to be a good thing.  The result was Design Right.

Design Right is a short-term copyright, with a few exceptions outside the scope of this article, for industrial products.  Design Right comes into existence when the design is fixed by drawing or model making.  It lasts as an exclusive right for five years from first marketing and for a further five years during which licensees are available as of right.

When considered in these terms, Design Right may appear something of a non-event, but believe you me, when you are on the receiving end of an Infringement Action through having copied as opposed to designing from scratch, it is far from a non-event.  The hearing date in court is a very real event.

Design Right has the advantage of design registration in applying to totally utilitarian designs without an ounce of aesthetics, but also the disadvantage of requiring the process of copying to be proved; this can be awkward.  So register where possible.

Copyright in Industrially Applied Artistic Works

This mouthful is the last vestige of straight copyright in this area.  If sculptures, for instance, are mass-produced, they are protected by copyright for 25 years.

In special fields this can be a powerful way to secure a royalty income for a sculptor or any designer whose work can truly be said to be protected as an artistic work, applied industrially.

So, register your designs where you can, put up other “Keep Off the Grass” warnings such as “design right reserved” or the international copyright notice © [author’s name] [year of first publication] and keep the plagiarists at bay!!”