The relevant legislation Copyright, Designs and Patents Act 1988 (CDPA) has provided us with a form of protection purley for the appearance of a functional product. Its an unregistered right like copyright where no registration is required. It lasts for the lesser of ten years from the first marketing of articles made to the design or 15 years from the creation of the relevant design document. You can obtain a licence in the last 5 years by right.
If you are the owner of design right then you have the exclusive right to reproduce a design for commercial purposes by making articles to that design or making a design document for the purpose of enabling such articles to be made (section 226(1), CDPA). If someone comes along and reproduces the design exactly or substantially to it (section 226(2), CDPA) then your design is infringed.
There are two forms of infringment. Primary infringement and secondary. Primary occurs when a person, without the licence of the design right owner, does or authorises another to reproduce the design by doing the restricted acts (section 226(3), CDPA). Secondary infringement, involves commercial importation of, or dealing in, articles which the infringer knows or has reason to believe are infringing articles.
Two key questions need to be answered before sending a client care letter:
1. Check that the design in question satisfies the originality test
2. Are you a qualifying person – in simple terms – someone in the EU!
The letter of claim
[YOUR DESIGN RIGHT]
1. We are the owner of the design right in [DESCRIPTION OF DESIGN AND TYPE OF ARTICLE, OR PART OF ARTICLE] (the Design Right). The Design Right was created by [NAME] on [DATE], as an employee. [ATTACH A COPY OF THE DESIGN]
2. It was brought to our attention that you have been copying our design and your copy is identical/similar and does not give a different overall impression to our Design Right. You cannot claim ignorance as we provided details to you on xxx and also its contained on the packaging. Your product is therefore, a copy of our Design Right.
4. We have spent a considerable amount of time and effort in obtaining the design and its unacceptable to us or you to continue and therefore requires your proposals for financial compensation.
If we dont hear from you within the next 21 days we shall pass this letter and your details to our Solicitors who will not be as pleasant!