February 2008
Paying Homage to Another Design
oncept to market classical books to look like cigarette packets (the range is called ‘Take Your Breath Away’) drew the attention of British American Tobacco (BAT).
BAT was concerned that one of these book-covers too closely resembled the box design of the Lucky Strike cigarette brand. Whilst negotiations are still ongoing between BAT and TankForm, there is a real risk that TankForm will be forced to recall and deliver up to BAT all the books concerned for them to be destroyed.
How far the law should go to protect successful brand owners from look-a-likes that do not compete with the products that are sold under their brands is an interesting question. The TankForm book-covers in this case were not confusingly similar to a Lucky Strike cigarette packet in the sense that the Lucky Strike purchaser might buy a copy of the book believing that the book was somehow endorsed or related to ‘Lucky Strike’. However, the book design by its similarity, still clearly makes reference to the Lucky Strike brand.
Whether ‘paying homage’ in such a way to another’s brand is something that should be able to be prevented by the successful brand owner is one of the subjects raised in the Government’s recent Copyright Consultation Paper. The paper deals, in particular, with whether an exception should be granted for parodies of another’s work or style.
The consultation paper itself can be viewed on: www.ipo.gov.uk/consult-copyrightexceptions.htm.
Briffa’s comment
Whilst it may be that the above Government Consultation could result in the parodying of another’s brand or style being allowed in the future, this is currently not the case. In most circumstances, any copying of another’s design or style, however minor, is (as the above case demonstrates) risky business and you should seek legal advice beforehand. In the event that you would like to create a look-alike or parody of an existing brand, the safest way is to approach the brand owner and to seek their prior approval.