Design Protect – Insuring Against the Risk of Copyright Infringement

What is Briffa DesignProtect?

DesignProtect is an innovative service uniquely offering cost effective legal insurance for all your designs which you can log with us.  Whether you design textiles, fabrics, prints, garments, footwear, accessories or 3D objects, you will find this service vital to your business.

What types of situation does it cover? 

The insurance covers a proportion of your and your opponents (if ordered against you) legal costs of:

• bringing an action in the UK against anyone who has wrongfully copied any of your designs or any registered design that has been granted; and
• defending an action or counterclaim in the UK which seeks to revoke your rights
• What does it cost and how much cover do you get?

The cost depends on your annual turnover. The table below shows the premiums payable. In return and subject to the terms and conditions of the policy, the insurers would make available to you a potential fighting fund up to the figure specified in the table below.

Turnover                                         Fighting Fund     Cost (incl VAT)

£0-50,000                                        £25,000                £212.80

£50,001-£100,000                          £50,000                £309.40

£100,001-£250,000                        £50,000                £406.00

£250,001-£500,000                        £100,000              £534.80

£500,001-£750,000                        £100,000              £695.80

£750,001-£1,000,000                     £100,000              £856.80

Turnovers in excess of £1 million are referred to the insurer for a premium figure.

How long does it last?

The premium is annual.

Is there an excess or other contribution?

As long as there is no claim under the policy there would be no other costs. If there is a claim, then in common with many insurance products, the insurers expect some sort of contribution from the insured to ensure that they act reasonably. If you use Briffa there is no excess you have to pay first before benefiting from the insurance.  However, there is a co-insurance proportion which means that: the insurers would cover up to 90% of the legal bills (excluding VAT if you can recover this) up to the limit of the fighting fund set out in the table above; and the insured would cover the remainder (the exact proportion depending on a number of factors including how many previous claims have been brought in the year). You should also bear in mind that the fighting fund is limited and we cannot guarantee that it will be sufficient to cover your costs and your opponents will also be incurring costs.  Normally the successful party in a legal action recovers most of its costs from the unsuccessful party. In the event that an insured is successful and recovers costs those costs are used to re-imburse the insurer.  In the event that an insured is successful and recovers a sum which does not differentiate between costs and damages or just specifies damages a fair and reasonable proportion of that sum will be deemed costs and paid to re-imburse the insurer.  If you do not use Briffa see below.

How do I get the insurance?

Simply complete and return the short proposal form indicating your annual turnover and pay the premium amount due as detailed on Briffa’s invoice and we will request the insurance from the insurer. When the insurer agrees the cover we will send you a copy of the policy and schedule confirming the insurance and cover will commence.

Is anything excluded?

The policy covers legal costs for good cases in the UK that an insured member of DesignProtect finds out about after the insurance is in place and within the insured year. It, obviously, 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.  It does not cover costs incurred obtaining and maintaining your rights, or in criminal actions nor fines, damages etc.

In addition to the above, there are the usual exclusions.  Many are unlikely to arise however, exclusions to note 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 fall out; and
• in relation to a designer’s (employee’s etc) own time and expenses in bringing the action.

Is there anything I can do to help avoid being copied?

Yes, make sure people know your work is protected by copyright and you are a member of DesignProtect which helps. Where possible use the notation © [YOUR NAME][YEAR OF CREATION] for copyright works and unregistered designs or for registered designs put the registered design number. Also DesignProtect members are free to use the DesignProtect logo when exhibiting their work.  When your insurance is confirmed you will receive notes on copyright as well as stickers for use on drawings and an exhibition stand notice. The logo can also be supplied in jpeg format for your website. The logo is a powerful notice that you have the financial backing to bring action against infringers.  It does not however, transfer any intellectual property rights in the logo or name, DesignProtect, to you: these remain with Briffa who has the right to demand that you stop using them.

Whilst it is not a compulsory requirement to taking out the insurance, DesignProtect  also entitles you to make use of a no extra cost recording and archiving system by which you can electronically log your designs with us. By sending us your designs, as they are created, DesignProtect can assist you in providing evidence of when your designs were created. The scheme covers all materials that you send us as jpeg attachments to the email address designprotect@briffa.com with the insured’s name as the subject of the email. The archiving scheme is free but only runs in conjunction with DesignProtect Insurance. If someone then copies your designs in future we would provide independent third party evidence of your design and the insurer could provide the funds to use that evidence to enforce your rights.

What would happen if I were then to be copied?

As soon as you become aware of a possible claim you must contact Briffa immediately. We will provide and assist you with a claim form to complete and return and the information and documentation needed. Once basic details of the dispute have been provided (including samples or good quality photographs of the original and infringing items) Briffa would give an opinion as to whether the case appeared to be a good and worthwhile one and send this with the claim form to the insurer. In appropriate circumstances, Briffa could send your opponent a letter or undertake emergency action on your behalf (incurring costs up to £1,500) without the insurer’s approval and the delay that can cause.  Thereafter and with the insurer’s consent, Briffa would progress the matter for you in the best way, if necessary, by taking/continuing formal legal action.

Do I have to use Briffa?

No, while we hope you would use Briffa, under the terms of the policy you would be free to choose  other lawyers to represent you. However, in the event that you choose to instruct other lawyers, there would be additional costs namely a £500 excess and an additional 10% co-insurance contribution.  The insurer will cover the remainder of the legal bills up to the value of the fighting fund.

What role do the insurers have?

The insurers:

• have a right to be kept updated and advised of all material facts and matters and provided with all relevant documents relating to the claim;
• to decide whether it is reasonable to commence and/or continue to fund an action however, they have to take account of our opinions, may require Counsel’s opinion  and the insured has a right to refer the decision to an arbitrator;
• to approve, in advance, expenditure up to a certain sum or time and for certain steps involving significant expenditure; and
• to be informed immediately of  any offers of settlement from an opponent and to approve, in advance, the acceptance of such an offer or the making of any and all settlement offers to an opponent.

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 pursuing a case which could otherwise be expended moving your business forward should not be underestimated.

Where can I get more information generally?

You can link to real case studies here which allow you to see benefits of DesignProtect.

If you have any further questions please call us on 0207 288 6003 to speak to one or our lawyers or email us at DesignProtect.

A copy of the policy with all ther terms is available on request.

This firm is not authorised by the Financial Services Authority. However, we are included on the register maintained by the Financial Services Authority so that we can carry on insurance mediation activity, which is broadly the advising on, selling and administration of insurance contracts. This part of our business, including arrangements for complaints or redress if something goes wrong, is regulated by the Law Society. The register can be accessed via the Financial Services Authority website at www.fsa.gov.uk/register.