By Dr. Julie Nixon
On July 30th, the Intellectual Property Bill, designed to simplify and improve design and patent protection, passed through the House of Lords. So with design rights currently a topical subject, it was interesting to see a year on from the London Olympics that two designs used in the opening ceremony are being claimed to have originated from unaccredited designers.
New Legislation to Protect Registered Designs
The Bill will make the act of deliberately copy a registered design a criminal offence, carrying a prison term of up to 10 years. The Bill was passed after amendments which would allow alleged copiers to be exempt from a potential criminal charge if they can show that they “reasonably believed” they did not infringe an existing design. This is to protect, for example, retailers who have followed seasonable fashion trends but have not deliberately copied a registered design.
The new legislation should encourage more designers to register their designs, but as yet will not apply to those designers with unregistered rights (the majority of designers in the UK).
As I've written before, it is more difficult to prove infringement of an unregistered design right as you must be able to prove it was copied, or that the potential for copying existed. If a competitor can show that it created its design independently, then it will not infringe an unregistered design right.
Olympic Opening Ceremony Designs Causing Controversy
Rachel Wingfield, co-director of Loop.pH, a London design studio is claiming that she designed a glowing duvet 10 years ago while still a student. Illuminated duvets were pivotal in the London Olympic opening ceremony scene paying homage to the NHS. Danny Boyle met with Wingfield in 2005 to discuss her designs featuring in the movie “Sunshine”. The illuminated duvets actually featured in the opening ceremony were produced by Tait Towers, and Boyle is adamant both designs are unrelated.
Meanwhile New York design studio Atopia is claiming that the Olympic cauldron, where petal-like elements were assembled into a canopy during the opening ceremony, was influenced by one of their designs which was presented to LOCOG in 2008. Thomas Heatherwick, who designed the cauldron used in the opening ceremony, is strongly denying any connection to the Atopia design, as are Boyle and LOCOG. Atopia have instructed lawyers to pursue LOCOG for breach of confidentiality.
No Certainty in Protection Given By Design Rights
With design right not always providing reliable IP protection, Atopia's case rests on the confidentiality of its pitch to LOCOG. Case law supports the design studio having a better chance of success arguing their pitch to LOCOG was confidential rather than trying to prove that the Olympic cauldron is a direct derivation from their design.
While the Intellectual Property Bill is a positive step in protecting designers from design copying, perhaps more reform is required to strengthen protection of design rights, both registered and unregistered. Design is important to the UK economy and businesses need to be able to rely on design rights and other IP to protect their creativity, and attract outside investment.