BrandProtect and DesignProtect Insurance - CASE STUDIES
BrandProtect and DesignProtect helps protect your intellectual property rights by providing a source of funding in the event that you incur legal costs in bringing or defending an action in relation to those rights. These two real case studies, from actual matters pursued under DesignProtect, illustrate specific advantageous aspects to the scheme.A Matter of Urgency
The member was a designer and supplier of kitchen utensils, in particular, a product which they spent substantial time and money developing, arranging for local manufacture and generally marketing and selling with increasing success.
As soon as the product started enjoying commercial success one of the member’s competitors sourced a sample product to substantially the same design from China. This apparent infringement came to light at a trade show where the competitor was securing significant orders for the copy product which was being offered at a low trade price. .
The member contacted Briffa and using images of the member’s designs logged through DesignProtect and the insurance’s emergency fund, we immediately wrote a cease and desist letter to the competitor which was handed to them at the show and commenced preparatory work on an application for an injunction in case the competitor did not agree to stop its infringing activity.
In fact, faced with such swift and forceful action, the competitor provided the undertakings demanded immediately withdrawing the product and providing details of the orders that it had taken for its product so that the member could contact the interested parties and offer them its own product instead.
This case study illustrates the way in which DesignProtect’s unique emergency fund can provide quick and effective results and stop the infringing activity at the earliest possible opportunity. BrandProtect and DesignProtect allows Briffa to incur costs of up to £5,500 on emergency action for a member without having to seek prior approval which means, if necessary, action can be taken immediately. Other intellectual property insurance policies usually require you (or your representatives) to seek the prior approval of the insurer in relation to any work needed under the policy. You are therefore reliant on the insurer who often takes a long time to authorise work even when they are told it is urgent – all while the infringement carries on and the loss and damage to you is escalating.
Apart from all that, not dealing with an infringement swiftly can in fact make a settlement more difficult to secure. Putting an infringer on notice early and before they have invested heavily in the product and taken orders gives you the best possible chance of an early settlement.
Levelling Up the Playing Field
The member was a licensing agent. It discovered its artwork copied by one of the UK’s top five advertising agencies in relation to an account for an international blue chip company. The opponents instructed a major city law firm. This one could have become a real financial struggle and without assistance with funding you could not have blamed the member for being reluctant to hold out for proper compensation and risking a fight.
However, with the comfort of knowing that DesignProtect would pay our 90% of legal fees (excl VAT) up to the value of the relevant fighting fund, the member could confidently instruct Briffa to represent him including, if necessary, in commencing a formal court action.
In fact, Briffa having written to the opponents and been able to refuse several low offers of settlement, the matter was settled with a substantial sum paid in compensation to the member.
This case study is a good illustration of how BrandProtect and DesignProtect can assist in protecting your intellectual property rights by providing a source of funding. If the member had not had the benefit of DesignProtect, the only realistic alternative to the member funding the matter itself would have been to take out ‘after the event’ insurance (that is insurance taken out after the infringement that needs to be insured has become known). However, such insurance tends to take a long time to arrange since the insurer usually seeks its own independent opinion on the case. It also tends to be extremely expensive, even where the case is a strong one, with a very large up front premium which can itself interfere in attempts at settlement. In contrast, for a much smaller premium, BrandProtect and DesignProtect’s fighting fund (of up to £100,000) helps level up the playing field in terms of the parties financial ability to fight and does so without interfering in any settlement attempts. Indeed, the knowledge that you are a member of BrandProtect and DesignProtect alone, can help stop opponents trying to use the threat of their deeper pockets to make derisory settlements offer, delay matters and even continue defending cases they should not be fighting. It helps focus opponents’ minds on the seriousness of their situation and need to resolve the matter with a sensible settlement.