The UK IPO has recently published a report based on four-years of research into the attitudes and actions of ‘design-right owners’ when encountering infringement of their IP (intellectual property).
The purpose of this research is to provide an insight into two aspects:
- What are the reactions of ‘design-right owners’ when they discover an infringement of their IP.
- What legal rights designers value.
This research was deemed valuable, as there has been a lack of data on the consequences and outcomes of IP infringement.
The key findings of the report are as follows:
- 98% of ‘design-right owners’ have experienced infringement of their IP.
- When an infringement(s) is discovered, the most common course of action is to correspond with the other party.
- 43% of the respondents are not prepared to pursue legal action, as they consider it to be too expensive. This is despite the fact that many had lost considerable sums in revenue due to infringement and staff hours in defending their IP.
- ‘Design-right owners’ consider the effectiveness of the various IP rights in the following, descending order:
- Patents
- Trade Marks
- Registered design rights
- Copyright
- Unregistered design rights (also known as ‘UDR’)
Interestingly, analysis of court cases from 2013 to 2017 reveals that unregistered design rights (UDR) are more frequently at issue than registered design rights.
In fact, whilst 50% of registered design rights are successfully defended, unregistered design rights enjoy a significantly higher percentage of successful litigation at 70%.
The level of infringement experienced should hopefully bring home to design right owners that design registrations can be a useful, powerful, and a relatively inexpensive strategy to adopt, to protect their IP and to ward off infringement.
IP rights are about creating value in your business by putting up hurdles and roadblocks to competitors. Despite the general reluctance by ‘design-right owners’ to get embroiled in disputes, having two angles of attack by using both registered and unregistered design rights will certainly increase a design owner’s likelihood of success against a copyist, along with increasing attractiveness to an investor.
Another particular advantage with registered design rights, as opposed to UDR, is that it allows e-commerce platforms, such as Amazon and eBay, to take down infringing listings extremely quickly.
As a word of caution, applicants of registered design rights can often make critical mistakes which destroy their rights.
Be aware that an opponent, when faced with your assertion of infringement, will try and knock your intellectual property rights out. If you have taken the ‘do it yourself’ approach to save money, do not be surprised that, when push comes to shove, your rights easily fall over and the copyist escapes.
Even if the application process appears ‘easy’, there are decades of legal cases which define and hone the current law. If you are serious about your legal protection, ask for professional assistance.
Furthermore, the report suggests that UDR is often overlooked by design right owners as a right to rely on to pursue infringement.
Design right owners are strongly advised to seek professional legal guidance, when they encounter infringement, to best understand the available course of action to defend their IP.
It is also hugely beneficial to seek legal advice early, thereby ensuring that appropriate IP protection is in place before you launch your new design publicly.
As a final parting thought, also be aware of IP Insurance which will cover you for pursuit and defence of all your IP rights. IP Insurance is a ‘before the event’ policy, and so does need to be in place before infringement has occurred. It can be utilised as useful extra leverage to encourage settlement.
For further information relating to design protection, or pursuing or defending design right infringement, please do not hesitate to contact one of our attorneys, who will be very happy to assist.