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Stay Ahead of the Game

Many high street multiple retailers respect and support creative design, but what can you do to safeguard your original designs and products against some indiscriminate multiple retail buyers and copyists who may rip off your designs and produce remarkably similar look-alikes?
Copycats are prevalent but there are many simple precautions you can take to raise awareness regarding the value you create in your designs and products. A basic knowledge and understanding of the rights, which subsist in your products, backed up by sound generic agreements, is a good start. It sends a clear signal that you know your rights and are prepared to assert and pursue them – after all you created and own your designs and you have brought them to market so you deserve to reap the rewards of the time, energy and creative skill you have invested.
In today’s competitive world where cheap look-alikes are flooding the market and slicing chunks off margins, how do you stay ahead of the game? No one wants the expense of taking legal action after the horse has bolted.
There are many free and inexpensive steps you can take to create a safer trading framework from which to trade. Being assertive about what you own is positive. The bottom line is theft is theft whether it’s an object or an idea.
To support designers, ACID has launched an affordable intellectual property insurance scheme with REACT, which is underwritten by Hiscox. You insure your home, or car – so why not the IP you create in your products. Use of the high profile IP insurance logo may send the copyists elsewhere when they realise that you are insured for up to £100,000 legal costs. This is available to non-members as well as ACID members but clearly there are cost advantages though membership. For further details visit www.acid.design.sales.co.uk

Tips for a meeting with buyers
Before the meeting – key questions:

Do I have documentation to prove that I own the rights to my designs?
Make sure that you have signed, dated and detailed evidence of who created the designs. Send them in a stamped addressed registered envelope to yourself and don’t open it.
Even better, if you are a member of ACID, send them to our FREE ACID Design Register. If you have registered your designs at the Patent Office or OHIM, say so and give the reference number. Don’t forget that recent improvements make registration much easier in the EU - one application will cover 25 member states and offers protection for 25 years (renewable every five years). For further details visit www.patent.gov.uk or www.oami.eu.int. The main difference between relying on unregistered UK or Community rights is that with a registered UK or Community design you have a monopoly right and you don’t have to prove copying, unlike unregistered designs.

Have I sent the representatives of the buying department a letter stating my standard terms and conditions of business?
Ideally, these should include a statement about your intellectual property rights along the lines of “All copyright, design rights in our designs and products are and will remain the property of XYZ. Any infringement of these rights will be pursued vigorously”. A sound set of standard terms and conditions which also cover intellectual property issues is advisable.

Are you going to send any prototypes/samples prior to the meeting?
If the answer is yes, make sure that a representative of the buying department is willing to sign an Intellectual Property Agreement before you send them. This is simply a signed declaration by them saying they honour your rights in your products. This can be the most valuable but vulnerable moment in your product’s future – guard it with your life.
Ask ACID for details about the ACID Intellectual Property Agreement or ask your solicitor.

Is the retailer a signatory of the ACID voluntary Code of Conduct supporting intellectual property rights owners ownership?
So far John Lewis, Selfridges and NEXT have all signed and Woolworths and Debenhams, whilst not signing, have made positive statements in support – this means that they have publicly declared that they will not knowingly copy a product. Although the Code of Conduct is non-legally binding, it is a morally driven Code designed to give designers and manufacturers more confidence about where they can take their products with the assurance that they will not knowingly be copied.

Everything you do before the meeting is providing you with an audit/evidence/paper trail surrounding each design/product and alerting the buying department that you take the ownership of your rights seriously.
If buying departments are not prepared to respond positively to the above you have to ask yourself why? – Do I really want to do business with them? If there is resistance, write to ACID - all this information will be used in a positive way to raise awareness and industry standards within the retail sector.

During the meeting
Verbally re-assert your design ownership, be proud of it – it doesn’t have to be heavy. It is your only face-to-face opportunity to re-emphasise the importance you place on what you have created. Don’t be intimidated by the purchasing power or influence of a big brand name. The reason you are at the meeting is because they may be interested in your designs/product range – it has a value, make sure that this value is recognised. If price is a sensitive point, it may well be that you can discuss the possibility of a retailer commissioning your design and paying a royalty. ACID’s has an ongoing campaign targeted at major high street retailers “Commission it, don’t copy it!”

After the meeting
Send a bullet point letter to the buying department confirming what happened at the meeting. This is more advisable than an email as it is more visible; don’t forget to keep a copy. Once a template letter has been prepared you can use this for all future design meetings.

Include:
• Name of person you had the meeting with
• Date and time
• Copy in a third party – e.g. a business colleague
• Product and reference of design/product discussed or shown at the meeting
• Any action points. Confirm your understanding of the next stage. For example:
• They will get back to you on price
• They will consider it further
• They were not interested
• They will return any samples left with them
• Re-assert your rights’ ownership
• Ask for confirmation that the meeting was confidential

In this way not only do you have an audit trail of all events leading up to the meeting, you also have a written audit trail of what you expect to happen after the meeting.
If, in the unhappy event you find that your product has been copied, you have instant evidence of the sequence of events preceding the discovery of the alleged copying and this makes it much easier to present to any specialist intellectual property lawyer to send an immediate letter before action. By creating this audit trail you have instant evidence – a key part of a lawyer’s letter before action - and you have provided this, thus saving expensive time that lawyers sometimes have to spend establishing rights ownership and the chain of events surrounding an alleged copying incident.
All the above doesn’t require a lawyer, only a little more time and effort from you– make it part of your marketing process. Keep a dedicated file for each meeting. It is vital, low cost evidence should you ever need it and it is creating an immediate deterrent/warning shot.
And finally, the ten billion-dollar question: Where do you draw the line between copying and following a trend? The bottom line is that most copiers would say that there is little scope for originality whilst most true designers would say there is a whole creative world out there just ready to grasp! The subject is very neatly summed up by Adrian Shaughnessy in a Design Week article entitled “So when is a copy right?” when he says, “It is acceptable to borrow from others so long as we make something new out of it. It is also vital that we acknowledge our sources. Copyists never own up to it. That’s the difference.”

Further Information
www.acid.uk.com

September/October 2010
issue 61
available now