At Briffa, we litigate in many forums. Generally, these include the High Court and the Intellectual Property and Enterprise Court, but we know our way around many others. One of which is the court of public opinion that often works at a quicker pace and can have good if not better results, as a number of Briffa clients have experienced. This case study will uncover one such example.
Our client was an independent designer experiencing success in the marketplace. There wasn’t a big corporate structure or complex licensing regime; instead, our client liked what it did and so did a number of others. This provided our client with a reasonable stream of revenue but with success does not come to the substantial amounts required to litigate in the High Court – these costs can be very high and there is always the risk that the case could be lost and an order to pay the other sides costs received. Not great when your designs have been copied and the copier doesn’t want to play ball; this is where our litigation knowledge and down-to-earth approach come into play.
Here, our client had done an informal job for a customer. The customer was a producer of nice things and would generally ask designers to design said nice things: if the customer thought the designs were commercially viable it would then take a licence of the design and commercially produce them, pay the designer, and sell them nationally. Or so the customer said.
Our client created a range of designs for the customer; as is common in the industry, our client devoted a lot of time to the creation of the designs only for the customer to not return emails and say they were not interested. Our client took that as life and carried on thinking that would be the end of that one.
Later, our client became aware that its designs were now being offered for sale nationally on the customer’s website. At this stage, the client had not so much as received a thank you from the customer let alone any credit or payment.
The client got in contact with us and asked what could be done. We are transparent and open about our fixed-fee pricing and the costs of litigation so from the very beginning, we knew this was not going to become a High Court case. We, on behalf of the client, issued a Letter of Claim to the customer explaining how it had unlawfully appropriated our client’s designs and demanded the usual remedies (the ceasing of the infringement and compensation).
The customer is big in the game and instructed its own lawyers to dispute our client’s claims. Our client didn’t have any ill-will but was keen to resolve the matter with a small payment to cover its fees, equally however our client was conscious to not spend too much as a small independent designer despite its intellectual property having been infringed.
We discussed the plan from the start with the client, these things are teamwork. We understood what the client wanted to achieve (recognition and compensation if possible) and knew the means in which we had to do it. When our Letter of Claim came back as rejected, we discussed the benefits of making a settlement offer at an early stage – it’s a win for all involved to settle a dispute early. Our client made a very reasonable offer to settle the matter, which was rejected by the customer and the overall position of our client denied.
We were in a situation where our client had fulfilled the court pre-action rules and had even made a very friendly offer to resolve things. Our client did not have the means to commence court proceedings, but we drafted these nonetheless: we drafted a careful social media campaign to accurately convey the facts of this matter and highlight the claimed copying.
Once we had drafted our social media campaign the client utilised its extensive following for maximum publicity. It was ready, set, game and we all knew that 10am on the Monday was the date on which this case would be presented to the court of public opinion.
Given the facts of the matter and our client’s designs compared to the customer’s, it was not long before the likes, shares and re-tweets came flocking in. So too did an offer to settle from the previously dismissive customer – however, our client wasn’t all too fused by the small fee anymore. The social media campaign had the added benefit of further exposure and a widened customer/advertising base.
Our client was still willing to resolve this one; to show good faith an offer was made by our client to resolve the unlawful use of the designs by its customer, which was quickly resolved. The customer had taken note and whilst it was correct that our client wouldn’t commence “usual” court proceedings, little did they know the power of the court of public opinion to get a result.
We litigate, it’s what we do; it’s not what we like to do, however, when it can be avoided. We know all the usual ways to resolve a dispute but also those less thought of and creative ones. As we are aware of the issues independent and smaller-scale businesses can face, we are able to offer a strategic plan of action no matter whether you are David or Goliath.
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