Our client is a furniture designer who creates distinctive quality furniture which is sold through small specialist shops. He runs a small workshop employing three other craft carpenters. A major department produced furniture which was strikingly similar to our client’s range and sold it in its store at a price much less than similar items of our client’s designs which were on sale at specialist shops. Our client had approached this same retailer a year earlier with a view to selling his range to them but no deal was done. The retailer had advised our client that they would need to place bulk orders and that the sale price of our clients pieces to them was far too high.
The actions of the retailer risks seriously damaging our clients business and his ambitions for expansion.
In this situation we have the usual legal tools available to us such as sending a Cease and Desist Letter. In cases however we are mindful that unless our client has insurance (which they did not in this case) their prospects of being able to fund any proceedings they need to issue through to a successful conclusion – should they need to go that far were slim. We therefore need to think how to turn a problem into a solution. We advised the client to send a full Cease and Desist Letter seeking all the usual remedies including that the retailer stop selling the infringing product and disclose the sale information for the products so that we could make a damages calculation.
The retailer sent a response denying any design infringement. However as the similarities were so close they also agreed that they would not purchase any further like products once their current stock had been depleted. In these situations many designers would decide to leave it at that. The simply can’t risk getting in a long drawn out dispute with a retailer with deep pockets. Not Briffa however. When we work with you we take time to get to know you inside out. This means that we knew that our client had ambitions for expansion and to open a much bigger workshop but that he did not have the means to do it. He had tried to secure a loan two years before but had been rejected on the basis that he could not show the demand for his products would be sufficient to make the repayments.
In light of this knowledge we went back to the retailer to secure a deal that in addition to not selling further infringing furniture, they would (i) provide full disclosure of the sales of the infringing items.
The sales information revealed just how popular our client’s products were. On the basis of the information our client wrote a business plan which he then took to his bank to secure a loan. He has now opened a much larger workshop and is making and supplying furniture to major retailers including the department store that sold the infringing products.
His next move is into the international market where we are advising him on expansion through (i) export (ii) a distribution network and (iii) licensing as well as export. We are also working on protection of his brand.
We look at the whole picture. Many lawyers think only about the problem in front of them and do ‘law by numbers’. In this situation a letter is sent and it asks for various things and that is what you pursue. By failing to get to know a client and to think a bit more creatively others fail to spot the opportunities to a client that may present themselves.
Before this design infringement the designer had no way of getting a loan to take on a bigger workshop and more employees. The figures from the department store gave him real proof of the reality of his business vision and one against which the bank was happy to lend. You could almost say that if it were not for the design infringement the designer would not have had the opportunity to expand his business
Another job done – happy client, happy lawyer!
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