It takes a lot of life experience, inspiration, imagination, deep sector knowledge, and all of the above, to come up with the right concept for a business. Ours is a competitive world saturated with companies competing essentially for the same trade, and there are untold numbers of additional businesses that failed because they weren’t able to differentiate themselves. Good, original ideas are hard to come by – but those fresh ideas that do surface, ready and armed with a proven concept, will invariably have to contend with a slew of copycats.
Take Trunki, for example, the popular ride-on animal suitcase for kids, which offered a somewhat unique design aesthetic back in 2006, leading to millions of units sold following exposure on Dragons’ Den. Recently, the product’s design was claimed by founder Rob Law to have been copied by a rival product called the Kiddee Case. And the rival did look remarkably similar.
Today, however, a court ruled that Law’s suitcase was not, in fact, copied by the rival.
It’s a ruling that may be unpopular with the design industry. This is a product that relies on a specific style of design and, to have a competitor come along with such a similar look and get away with it, calls into question the efficacy of design patents.
Neil Westwood, founder of Magic Whiteboard, has seen his own company fall victim to copycats. ‘A bigger company sees that you have created a fantastic product and basically they then try to muscle in and steal your profits. It is very frustrating and annoying,’ he says.
‘You do all the hard work, you innovate to create an amazing product, you take all the risk, spend a fortune on research and market testing and then someone comes along and copies it.’
Westwood finds that the law does not offer much protection, and adds it is very expensive and time consuming to take things to court.
But Professor David Musker, chair of the Chartered Institute of Patent Attorneys‘ Designs Committee, says that this case concerned Registered Community Design protection, which does not protect against copying of ideas, but only against imitations that look similar.
They look pretty similar to me, but Musker contends that while the Trunki and the Kiddee Case have a similar overall design, there are several important visual differences, and it is ‘quite easy to tell the two products apart’.
He adds that, therefore, far from creating chaos and confusion, this ruling ‘clarifies what kind of rights a registered design brings’.
In giving the ruling, Justice Lord Neuberger explained that the visual design of the Trunki was ‘significantly different from the impression made by the Kiddee Case’, and therefore the rights of Law’s company Magmatic were not infringed.
It’s a tough pill to swallow when your livelihood is governed by seemingly subjective assessments such as these. So what should the advice be to any designer with a valuable idea?
Michael Moore, partner and IP lawyer at Marks & Clerk Solicitors says that to maximise protection, where possible, layers of registered design protection should be obtained. For example, this could mean a registered design to protect the product as a whole (eg with line drawings) and a separate design or designs to protect distinctive parts or features of the product.
See also: Protecting your intellectual property
‘Following this case, where possible, companies should in particular consider protecting variations or other embodiments of the design. Significant cost savings can be made if multiple related designs are filed at the same time,’ Moore adds.
‘Thomas Edison said that the value of an invention lies in putting it into effect. With a design, the value lies in protecting, so far as possible, all commercial embodiments.’
Stephen Welfare, who heads up the intellectual property unit at solicitors Royds adds, ‘The simple lesson for designers to learn from this judgment is that when submitting an application for a CRD be careful to include all elements of the design which you want to protect and which you believe give the design individual character whether CAD drawings or otherwise.’
Or alternatively, as Westwood says, ‘Be the best, be the first mover in the market, get control of the distribution channel and get the biggest market share. Customers want the best product.’