The world is changing before our eyes. The Government restrictions are unlike anything we have seen before in our lives. The news takes us on an unprecedented emotional rollercoaster. In the midst of all the heart-breaking stories, a 100-year-old war veteran raises over £30 million for charity.
In spite of all of this, there are aspects of life that nevertheless continue on in (pretty much) the usual way. One of those aspects is legal system and in particular the legal system that underlies the protection and enforcement of intellectual property rights.
In February this year a European Community Design Court confirmed that the registered design for the special shape of the well-known GHD hair straightener had been infringed.
The crux of the case was that the alleged infringer argued that because the registered design contained ornamental stripes (whereas its allegedly infringing product did not contain ornamental stripes) there was no infringement. Indeed, the alleged infringer argued that the ornamental stripes were the only elements giving the registered design novelty and individual character (in other words, it argued that those ornamental stripes were the only elements that made the registered design valid in the first place), because all the other shape elements of the design were merely functional and therefore not protectable.
The court disagreed and found that the GHD registered design was valid and was infringed.
In particular the court found that the lines or stripes shown in the GHD registration were a graphic or pictorial device used to represent the product’s smooth surface and concluded that the registration included no decorative or ornamental elements.
With everything that’s going on in the world, the decision of a European Community Design Court might seem a bit irrelevant, but it is noteworthy for a couple of reasons.
It is a reminder that there were infringers before the lockdown and there will be infringers after the lockdown. It is important to continue to maintain the valuable intellectual property rights that protect your business, and to enforce them when infringements surface.
It is also a reminder of the importance of investing in intellectual property rights like designs, trade marks and patents in the first place. Even when business is slow and money is tight, investing in these assets is important because they can generate revenue through licensing and other commercial arrangements, they can also be used defensively to prevent infringement and they add to the overall value of the business from the perspective of a potential investor or buyer.
Many of us are spending less time working ‘in’ our businesses right now. But this is the perfect time to work ‘on’ our businesses instead; to think about the things that have been on the long finger such as getting our intellectual property portfolio in order or getting our legal documentation in order. Investments made in valuable intellectual property assets now will produce returns that will reliably outlast the lockdown (e.g. an investment of £500 in a trade mark now will protect a brand for 10 years; investment of £250 in a registered design now will protect a product design for 5 years).
The world will return to normality and when it does there will still be a market for hair straighteners and other consumer products. There will still be a need to protect these products. And there will still be a need to police and respond to infringement.
Briffa are experts in intellectual property law and practice and we offer free 30-minute consultations to all new clients. In addition, we are running a range of webinars and other virtual events and activities to support people and businesses during this time by providing IP, commercial contracts, dispute resolution and other legal advice and support. If you would like to find out more, please visit our website or contact us.
Written by Eamon Chawke, Solicitor