May 2004
Designprotect Insurance. Insuring against the risk of being copied.
As a member of Briffa's designprotect service you are now eligible to take out insurance to pursue those who copy you.
This is a totally unique and exclusive product to members of designprotect.
How does it work?
Briffa have negotiated a group insurance policy for members of designprotect.
The insurance lasts for one year and is designed to indemnify insured members of designprotect against the majority of all the legal costs of good cases of copying that you find out about within that year. Having insurance means that if an insured member of designprotect becomes involved in infringement proceedings they should have the financial resources to take the necessary action to protect their business.
The premiums payable are extremely competitive. Although it is possible to buy insurance to pursue copyists on an individual basis from specialist brokers the rates are prohibitively expensive for most businesses. The favourable rates offered to members of the designprotect scheme take into account the economies of scale from being part of a group policy and the fact that as a member of designprotect you have already taken the first step in protecting yourself. It is the equivalent of obtaining a competitive quote for household insurance on the basis that you appreciate that you should lock the house up when it is empty.
What types of situation does it cover?
The insurance principally covers the majority of the legal costs of:
- bringing an action in the UK against anyone who has illegally copied any design that you have lodged with designprotect or any registered design that has been granted and lodged with us; and
- defending an action in the UK brought by anyone who wrongly claims that your designs have been copied from them. The policy will only cover good copying claims that a designer finds out about after the insurance is in place and within the insured year. It would not cover copying which a designer is or should be aware of prior to taking out the insurance nor copying which may have begun before the expiry of the insurance but which a designer only finds out about after the insurance has expired.
Is anything excluded?
Yes, there are the usual exclusions. Most are unlikely to arise and a full list is available from Briffa. However, the main exclusions to note where the insurance does not apply are:
- where a designer has acted recklessly in allowing the copying to happen; or
- where a designer (were he paying himself) would not take or continue the action, for example where a reasonable offer has been made; or
- in relation to disputes between two persons who jointly own the design; and
- in relation to a designer's (employee's etc) own time and expenses in bringing the action.
What does it cost and how much cover do you get?
The exact cost depends on your annual turnover. The table below shows the premiums payable. As with all insurance products a tax (insurance premium tax) is also charged and passed onto the designprotect insurers. In return and subject to the terms and conditions of the policy, a copy of which is available from Briffa, the insurers would make available to you a potential fighting fund up to the indemnity figure specified in the table below.
Turnover |
Indemnity
any one member |
Premium |
Premium incl IPT |
£0-50,000 |
£25,000 |
£100 |
£105 |
£50,001-100,000 |
£50,000 |
£175 |
£183.75 |
£100,001-250,000 |
£50,000 |
£250 |
£262.50 |
£250,001-500,000 |
£100,000 |
£350 |
£367.50 |
£500,001 + |
£100,000 |
£500 |
£525 |
How long does it last?
The premiums set out in the table above are annual.
Are there any other costs?
As long as there is no claim under the policy there are no other costs. If there is a claim, in common with many insurance products, the insurers expect some sort of ongoing contribution from the insured to ensure that they act reasonably. We have negotiated a co-insurance of 10% which means that the insurers would cover 90% of legal bills up to the limit of the indemnity set out in the table above the insured would cover the remainder. Normally the successful party in a legal action recovers most of its costs from the unsuccessful party, however, in the event that an insured is successful and recovers damages but any of the insurer's costs are not recovered from an opponent the insurer can recover its costs out of the insured's damages.
How do I get the insurance?
If you are a member of designprotect you can simply buy the insurance by paying Briffa the premium which matches your turnover in the above table plus 5% insurance premium tax. For example if your turnover is less than £50,000 you will need to send a cheque for £105 made payable to Briffa. We will then issue you with a certificate and policy for you to keep as evidence of your insurance.
What if I were then to be copied or accused of copying?
As soon as you become aware of a claim you should contact us immediately. Once we have the basic details of the case including samples or good quality photographs of the original and infringing items we would then give you an opinion as to whether the case appeared to be a good one under which a claim/defence could be made and, if it was a good one and if necessary, we could send your opponent a letter or undertake emergency action on your behalf (incurring costs up to £5,500) without the need to obtain approvals and the normal delay that that causes. Thereafter, we would report to the insurers and progress the matter for you in the best way if necessary and having obtained the insurer's consent, by taking/continuing formal legal action.
Do I have to use Briffa?
No, under the terms of the policy you would be free to choose certain other specified lawyers to represent you although we would hope that you would continue with ourselves.
What role do the insurers have?
The insurers:
- have a right to be kept advised of all material facts and matters relating to the claim;
- ultimately decide whether it is reasonable to commence and/or continue to fund an action in relation to which they have the right to seek the opinion of independent lawyers (which the insurer will organise and pay for) and the insured has a right of appeal; and
- must approve certain steps relating to significant expenditure, any and all admissions and offers of settlement made to the opponents and the final settlement.
Do I have to go all the way?
No. Most cases settle well before trial. Many settle in the very early stages. As with all cases we will throughout look for ways in which to settle the case for you on favourable terms without the need to go to trial. Sometimes the solution which emerges can be quite novel. No two cases are the same. At the end of the day it should be remembered that even good cases carry risk and the time and energy spent on pursing a case which could otherwise be expended moving your business forward should not be underestimated.
Are there any other Briffa booklets about disputes, which may be of interest?
Yes, please refer to our Briffa Bites Booklets on Dispute Resolution and Mediation, which are available on request and tell you more about the legal processes available to businesses in sorting out their differences.
Where can get more information generally?
Please call us on 0207 288 6003 to speak to one or our lawyers or email us on one of the following addresses:
margaret@briffa.com
ralph@briffa.com
Want to know more?