3 ms·
The case is quite unique in some ways because the alleged infringer disclosed that they had intentionally instructed a designer to design around the original.
by grabeh 14y ago
The case is quite unique in some ways because the alleged infringer disclosed that they had intentionally instructed a designer to design around the original.
Copyright, at least in the UK, has for a long time granted protection for copies which are not necessarily identical, but similar where they are a substantial reproduction of the original.
Admittedly in the case above the line between protecting an idea and the expression was pushed towards the idea, however, as stated, the specific facts of the case (in the sense that it was a blatant attempt to mimic but not infringe the original) made it more likely that the judge would find infringement.
- ktizo 14y agoThey should have used the law on 'passing off' rather than copyright. http://en.wikipedia.org/wiki/Passing_off http://en.wikipedia.org/wiki/Passing_off
- grabeh 14y agoWhy do you say that? They were successful in the instant case and in my experience, passing off actions are far harder to prove than simple copyright infringement actions. There was no misrepresentation here designed to divert custom, just a good old fashioned desire to use someone else's image.
- ktizo 14y agoBecause the case was more suited to the law of passing off. How much experience do you have of passing off cases versus simple copyright infringement? Because to me this looks like a bad decision, as whatever the intent the same image was not used, just one that was similar in content and execution. And it certainly looks like misrepresentation to divert custom.
- grabeh 14y agoI have experience of acting for clients on both sides of passing off and copyright infringement claims. There was clearly no passing off here in the way you tend to frame a passing off action as per Warnink (in the UK at least). What misrepresentation are you referring to? The defendant was a tea company looking to use an image, the claimant was a gift company so it wasn't a case of a customer going to the tea company when they meant to go to the gift company. This is the misrepresentation which generally has to be in place for a passing off action to be successful. Copyright infringement does not just cover identical images but substantial reproductions. The correct question is whether the copy was a substantial reproduction or whether it simply borrowed elements from the original, that is to say whether the line between inspiration and copying had been crossed. \edit I would also add that in general passing off actions are far harder to prove than copyright infringement. To my mind, if a copyright infringement action is available this would always be preferable to bringing a passing off action.