Copycat Culture: When Inspiration Crosses the Line into Infringement

The idea that “good artists copy and great artists steal” was popularised by Steve Jobs in the development of the Mackintosh but is generally attributed to Pablo Picasso. The idea seems to be a recurring one with several creative artists penning their own similar phrases over the years. Similarly, copycat culture is often used when discussing like-for-like replicas and dupes, but in today’s world where IP permeates ever-increasing aspects of our daily lives, where does one draw the line at inspiration and cross over into the danger zone?

This issue is a critical one for all artists and creative businesses in today’s world, as brands and businesses look to cash in on emerging trends and often employ strategies to identify key markets to enter into. However, how does one ensure that a business can identify a gap in the market, yet make sure not to infringe on any existing IP rights?

How Does One Infringe?

Copycat culture may affect a number of rights, as different IP rights are infringed in different ways.

Trade marks and passing off: protecting brands

Trade marks and passing off are mainly about protecting brands and brand identifiers — things like names, logos, and other signs that tell consumers who a product or service comes from.

A registered trade mark gives its owner exclusive rights to use that mark for the goods or services it is registered for, and to stop others from using the same or a confusingly similar mark in the same or closely related areas. The key question is whether the marks are so similar that consumers might be confused about who is behind them.

Passing off covers a similar type of harm but applies where no trade mark is registered. It protects the goodwill a business has built up in the market and prevents others from misrepresenting their goods or services as being connected with that business. Again, the focus is on consumer confusion and damage to the brand’s reputation.

In short, both trade marks, and passing off are concerned with who consumers think they are buying from.

Copyright and design rights: protecting products and creative works

Copyright and design rights, by contrast, are about protecting the products themselves, or aspects of how they look.

Copyright protects original creative works, such as drawings, artwork, text, and designs, as long as they are original and recorded in some form. Infringement focuses on whether a later work has copied a substantial part of an earlier one.

Design rights protect the appearance of products: their shape, configuration, and overall look and feel. The key question here is whether a later design produces a similar overall impression to the earlier design.

Unlike trade marks and passing off, these rights are not about brand identity or consumer confusion, but about whether the creative or visual features of a product itself have been copied.

How Can You Guard Against These Issues?

To prevent such issues from happening, businesses can employ several different strategies to ensure that copycat culture does not eat into their bottom line.

1. Identify

The first step would be to properly identify your IP rights early on, which can be critical to avoid issues further on down the line. By conducting IP audits, businesses can ensure that they have discovered all applicable IP rights and can take the next steps in ensuring their protection.

2. Protect

Different IP rights are protected in different ways. Whilst some IP rights require filing and registration in order to protect the rights, there are some IP rights that are non-registrable (e.g. copyright). In both cases, contracts may also be required to ensure that the correct party owns the IP and that third parties make use of your IP in a pre-agreed manner.

3. Search

Once you have identified and protected your IP rights, make sure to watch out for copycats! Trade mark and domain watching services can be helpful in this respect as they continually monitor for conflicting applications on your behalf. However, regular searches online, through social media platforms and search engines, are also important to identify competitors’ activities that may infringe your IP rights.

4. Enforce

Being proactive is key, especially as sitting on your rights can mean losing them, so be sure to take action! If you identify a potential copycat, take action. Briffa can assist by issuing take-down notices, sending cease and desist letters and helping to find cost-effective solutions to infringement situations in a commercial and practical way.

If you believe that someone might be pushing the boundary into infringement territory, or want any other form of IP advice, contact our legal team at info@briffa.com or through our website contact form. Our IP experts are here to help! After all, when it comes to IP, imitation might not always be the sincerest form of flattery.