Jane Wall-Budden said of her five-year battle, “Throughout this process my business has suffered severely trying to compete with a national retailer selling what I think is an almost identical product. It cannot be right that after 3 failed attempts at invalidating my registered Community design they still use the legal process to try and stop me seeking justice. Would the parents of children who buy their products do so if they knew how they treated independent designers? What do you think?”
Dids Macdonald, OBE CEO of ACID said, “A typical strategy by some major online marketplaces who “find inspiration” and produce remarkably similar products to existing designs is to stonewall challenge and perpetuate litigation. This is especially true when the innovator is a micro or SME. The facts of this case are included in the latest ACID case study and would appear to go against the principles of corporate social responsibility in terms of IP respect, compliance and ethics.”
William Miles, Partner of Briffa said, “The three successive failed attempts to invalidate Jane’s design have only served to waste time and resource on both sides. If a fourth attempt is made, I’m confident that it will fail however I fundamentally question the rationality of M&P’s approach and sincerely hope that this matter can be finally resolved soon.”
Current Anti Copying in Design (ACID) case study
Bumpsters supply innovative cot bar bumper cushions http://www.bumpsters.co.uk.
- In 2010 Jane obtained a registered Community design for her Bumpsters product.
- In May 2013 Bumpsters sent a sample of their product (via their licensee) to Mamas & Papas with a view to it being stocked by them. Mamas & Papas declined to do so.
- In October 2013 Jane noticed that Mamas & Papas had produced remarkably similar products to her designs and were selling these goods from their website. She believed that her registered design had been infringed and she raised this with M&P via her lawyers.
- Instead of acknowledging Jane’s rights and withdrawing their products from sale, M&P applied to invalidate Jane’s registered Community design in January 2015. However, this application failed and Jane’s design remained on the EUIPO’s register.
- Jane hoped that the matter would be concluded with settlement negotiations but in January 2016 M&P appealed the original decision, this time at Board of Appeal level, seeking again to invalidate Jane’s design. M&P subsequently lost this appeal.
- Again Jane hoped that the matter would finally come to a conclusion but, still undeterred, M&P appealed the Board of Appeal’s decision in September 2017, again seeking to invalidate Jane’s design.
- On 23 October 2018 M&P lost this further appeal (judgment from the EU’s General Court here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=206942&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2001101).
- M&P appear to be considering a further appeal (this would be their fourth attempt at invalidating the design).
- If they proceed with this, Bumpsters’ lawyers will continue to be barred from issuing Court proceedings whilst the appeal is pending. This could easily take another 12 months, during which time Jane must patiently wait whilst her business continues to suffer.
