ACID -- the UK-based Anti-Copying in Design group -- has helped its member Robert Welch reach a favourable confidential settlement of a lookalike packaging dispute. According to ACID's newsletter the following statement was agreed by both sets of solicitors on behalf of Robert Welch Designs Limited and major retailer Marks & Spencer:
“Cutlery and gifts specialist Robert Welch Designs Ltd and Marks and Spencer plc have reached a confidential settlement to the satisfaction of both parties involving a design dispute. Robert Welch claimed that Marks and Spencer plc had copied packaging designs from Robert Welch’s “Radford” cutlery range on Marks and Spencer’s “Loxley” and “Oxford” cutlery collections. Marks and Spencer deny any copying has taken place and maintain that the packaging was independently designed. No Admission of liability has been made”.ACID CEO Dids Macdonald comments:
“... One of the most difficult aspects to prove in any alleged copying is copyright infringement in packaging where the images have been changed sufficiently so that legal challenge is difficult (and costly!). This is a subject about which ACID has lobbied for some time now – a case for unlawful imitation. In these situations often designers have to rely on “passing off”.But that's just the problem, says the IPKat. If you're a big company with ample resources, things look very different. You can run small designers into the ground, break their bank and discourage them from enforcing their rights in the future. This reduces retailers' overheads, keeps down their prices and enables them to compete more effectively against each other. There will always be more small designers, each stepping up in turn to offer their creative talent and gather a few crumbs of recognition and/or the occasional payday, but a giant retail group takes years to establish and must be protected against this trollism of small-timers seeking to disrupt their commercial operations by waving legal rights at them. Merpel adds, the forks may be made of stainless steel but the reputation of Marks & Spencer is may find itself tarnished by episodes such as this.
If a company has to rely on “passing off” it is necessary to provide independent evidence of consumer confusion. What chance does any small, successful, niche, design led company have with major retail brands? This is why it is so difficult to prove and why, as in some cases it would appear companies have to settle out of court and agree a joint statement. When one looks at the time involved (over two years!) in the above case, it begs the question – why didn’t both sets of lawyers suggest mediation as an alternative to litigation?”
Museums of cutlery here and here
What cats do with forks here