ANTI COPYING IN DESIGN (ACID)
ACID has welcomed the opportunity to reply to the consultation and questionnaire on the UK Intellectual Property Enforcement Framework. The Government, through its agency, the Intellectual Property Office, has called for evidence to form the basis of an Enforcement Framework on which policy will be based for the next five years. The IPO has no enforcement powers but instead provides strategic leadership by developing policies, ensuring the legal framework is fit for purpose, coordinating activity, and supporting operational enforcement activity through the IPO Intelligence Hub. Information about the consultation can be found here.
ACID’s full response can be seen here.
ACID’s, supported by member evidence, has recommended:
- Cost and Time of taking Legal Action – A Government to review to examine the costs of legal challenges. The majority of designers are lone, micro and SME. The average hourly earnings for a designer are around £16 per hour and this leaves little chance for a designer SME to afford IP legal fees (from £200-£500+ per hour), leaving narrow routes to enforcement.
- Statutory Damages – These would act as a deterrent and most ACID members support this. The current options of choosing between two systems are complex and can create a barrier for SME rights’ holders in taking legal action. Further research into statutory damages would be welcomed as a further option.
- Small Claims Track (SCT) – Inclusion of Registered Design Cases – The inclusion of registered designs within the scope of the small claims track (SCT) of the IPEC is something that should have been addressed years ago. After all, what is the point of having an SCT if small, registered design cases cannot be heard? As the strategy of the IPO encouraging the registration of designs has been successful and seen a marked increase, it is anomalous that common sense has not prevailed thus far.
- SCT – Introduce an Online System – We support creating an online system to offer a cost-effective means to submit claims which would reduce the time and expense of a full court hearing and which could be dealt with administratively.
- SCT – Increase level of potential damages, currently £10,000 – We also support an increase in the level of potential damages which, currently, at £10,000 is too low taking into account the cost of the time and administration that rights holders have to experience to take legal action through SCT.
- Introduction of Criminal Provisions for intentional unregistered design infringement – As UK designers will lose the protection of automatic unregistered designs rights’ protection in EU27 as from 1 January 2021, now could not be a more appropriate time to consider strengthening the deterrent factor against copying by introducing criminal provisions for the infringement of an unregistered design making
individual directors also liable. As a result of this failure in the Brexit negotiations, Government has an obligation to support UK designers in the same way as copyright creators with stronger IP rights.
Dids Macdonald, OBE., CEO of ACID said, “Whilst ACID members have welcomed a positive review of the above issues, they do not believe that the issues raised were ambitious enough to deal with the deterrent aspect against copying necessary for lone, micro, and small designers. Through this consultation process, we wish to ensure that the issue of criminal provisions for the intentional infringement of an unregistered design is also considered. We have provided case study evidence and comments from ACID members including evidence that copying within the design sector is blatant and deliberate. The need is and will be exacerbated by the failure to obtain reciprocity in the trade deal talks.