Focus on Business Advice


● Ownership: have clarity on the ownership of the designs that you create by entering into contracts with employees,


freelancers, etc. which spell out who owns the designs. ● Be clear with colours: if you include colour in your design, that colour will form part of your protected design. If you wish to protect your design in any colour, consider filing black and


white line drawings as well. ● For each design, establish/ estimate the lifespan of the product in order to decide which route of protection (registered


or unregistered design) is most suitable. ● Make sure you date, store and archive drawings, sketches, mood boards and other items that are part of the design history and process so that you can prove the existence and


ownership of your unregistered rights. ● From a cost-efficiency perspective: consider filing multiple applications which allows you to include several designs in


one application. ● Consider deferment: a Community design must be published, however, publication may be delayed for up to 30 months which means that your product can be kept confidential until you are ready to disclose it (for instance just before a


catwalk show). ● Be cautious of 'over-filing' as one design might be detrimental


to the novelty of a (very) similar later design application. ● Be clear on dotted lines. Features of a community design which are marked with dotted lines are excluded from the scope of protection unless it is made clear that protection is also sought in respect of such features.


Take the right steps


If you believe someone has imitated or stolen your work, there a number of steps you should take before resorting to legal action.


First, before you do design, write, or create anything, make sure you adequately record your work. For painters or artists, this may seem difficult, but take pictures, and ensure that all of your work is backed up. Fortunately, in the age of computers, saving local and cloud copies can take a matter of minutes, but this could be crucial is resolving any potential issues in the future.


If you believe someone has stolen your work, then the first thing to consider is could someone actually steal your work in the first place? For example, if you have drawn a design and taken a picture of it on your digital camera, and you find an almost identical design on a website that has been for sale for a year, then the likelihood is that it is a coincidence and nobody has stolen anything. In cases like this, check publication dates to ensure that it isnʼt an innocent mistake.


Another step to take is ensuring that the work isnʼt derivative of your original design. For example, if someone has used your work as inspiration for their own design, then you can ask for the appropriate accreditation, and most artists or designers would be happy to do this. However, if the work in question has been ripped off from your own and doesnʼt give you the appropriate credit, then follow the next steps.


Cease and desist


It is always advisable, if you get to this point, to take some kind of legal advice as a second opinion. This could save you both time and money later on down the line. But if the legal profession is advising you to proceed with the action, then the next step is a cease and desist letter. This is effectively a warning to the other party of legal action. This should be written with the advice of a legal professional to ensure that it is appropriately worded and sends the right message to the third party. Many people have written their own cease and desist letters and been accused of threatening behaviour, so avoid that!


At this point, consider if the legal case is worth it, i.e. will the money used to pursue a legal battle be outweighed by the money made by your design. If so, then litigation may well be the appropriate action. If not, maybe it is a life lesson for you. However, whatever your next steps are, do consult a legal professional to help you. If you do decide to move on with litigation, ensure that your lawyer has experience in design and copyright cases. Otherwise, this could be costly and you could be underrepresented in your case.


Third party applications are becoming increasingly popular, with companies like Teemill and Alive Shoes giving budding designers the platform to bring their designs to life and sell them directly to customers. However, the protection of such designs could be problematic. Teemill, for example, states that ʻIf you upload a unique design to Teemill for which you own the copyright or trademark, you retain the copyright, trademarks and associated rightsʼ. That does mean that the designer needs to, first, upload a unique design, and secondly, own the copyright or trademark which gives the designer the protection. Luckily, many of these third party sites do offer terms of service which protect designers from their work being ripped off or slandered, but it is imperative for any artist to check the individual platformʼs terms of use or service to ensure that your design will have adequate protection if it is replicated by another party.


For garment decorators and those who are given designs to create into a product, taking the appropriate steps to ensure that you have not copied a design, such as photographing your client's work and your own work, could be beneficial to protecting you if any issues do arise. However, if you do move into creating your own designs, do take the appropriate steps to ensure that your work is protected and you are protected against anyone potentially taking legal action against you.


www.printwearandpromotion.co.uk October 2019 | 63 |


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