Costly kitchen designs?

The name of Mark Wilkinson should already be familiar to all IP practitioners. In an important case from 1997* Mark Wilkinson Furniture (MWF), in bringing an action for copying in relation to their kitchen cabinets (right: a particularly fine example), were instrumental in better defining the bounds of copyright and UK unregistered design right.

It seems, however, that the copyists did not learn their lesson from this. Dids Macdonald of ACID (Anti-Copying in Design) has brought to the IPKat's attention this month's issue of Cabinet Maker (admittedly not a publication this Kat reads very often), which reports that MWF have been successful in recently winning £26,000 in damages and costs against a group of architects for allegedly copying kitchen designs produced by MWF. While this was a settlement out of court, it does point out that the often-neglected area of designs (see the previous post here) is nonetheless a serious one, particularly for those whose skill, judgment and labour is unfairly taken by copyists.

Neither Andrew Gowers nor the UK-IPO appear to have raised much awareness about the availability of design right as a legitimate intellectual property right. As shown in the recently published 2006 Patent Office review (reported here), design right registrations constituted only 4% of the total number of registered rights recorded in the UK. This is even though design right registrations are by far the cheapest registered IP right available in the UK, with an official filing fee of a mere £60 for each design.

ACID's own research of 662 non-member designers and manufacturers demonstrates that only 15.5% (103) were aware of registered UK or EU designs and a staggering 3.2% (21) out of 662 actually had any type of registered design at all.

Dids is therefore looking to the newly branded UKIPO to raise awareness generally about designs and address the disparity between design right and other intellectual property rights in terms of a balance of focus, and further points out:

"Interestingly, ACID has a free design register for those relying on unregistered UK and Community design which holds approximately 100,000 designs providing independent evidence of date of receipt on behalf of its 1000+ membership. If this is indicative of a membership of 1000+ and the UKIPO represents the interests of all potential UK design right holders, surely it is missing a trick to either harness the potential income or redirect to OHIM? Today, for example ACID received over 400+ designs to be entered onto its design register so there is clearly a need!

The new UK Intellectual Property Office logo cites that it is for "Creativity and Innovation". The various words to describe the some of the elements necessary for DESIGN include innovation, creativity, originality, novelty, unique, inventiveness, freshness, imagination. If the UKIPO granted over 65,000+ trade marks last year then surely this revenue is a source for earmarking funds to support design? The question has to be asked, "Is design taking a back seat because it is not a potential revenue earner?"

According to a survey by the Design Council, for every £100 a design alert business spends on design increases turnover by £225. Shares in design-led businesses outperformed key stock market indices by 200% over the past decade. Don't we owe it to designers to provide awareness and access to rights which will afford protection for their creativity and innovation?

ACID has already begun positive meetings within UKIPO to raise awareness internally about the need to support designers but much more needs to be done at the very highest level and within Government. ACID is looking to UKIPO's new Chief Executive Ian Fletcher to lead on this and ensure that "For Creativity and Innovation" also includes the lowly design right holder."

The IPKat, as has been pointed out before, wholeheartedly supports ACID's efforts to get design rights more noticed. In most cases it appears that creative companies do not seem to be even aware that they have these rights. The UKIPO could perhaps devote some more effort in trying to make the wider public aware of these rights, which are either low cost or freely available and are sometimes the only weapon available against copyists.

*Mark Wilkinson Furniture Limited v Woodcraft Designs (Radcliffe) Limited [1998] FSR 63