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26 February 2018

INTA Design Conference 2018: Imitation isn’t flattery

“Imitation isn’t flattery if it costs you your business”,  Dids Macdonald said today at the third design-focussed conference hosted by the International Trademark Association (INTA).

This morning, February 26, Macdonald spoke about the challenges of protecting designs globally alongside Kimiya Shams and Dan Plane at INTA’s conference,  The Power of Design.

Macdonald is the founder of Anti Copying in Design (ACID). She built her career in interior design and experienced first-hand the difficulty of having products copied. Speaking about the experience of having her work imitated, she said it isn’t flattering: imitation is “a sanitised word for theft”.

"Many" say it’s a golden time for design in the UK, but Macdonald described the “demotivating” and “mentally exhausting” lawsuits that designers often face.

“The majority of UK design businesses are lone, or SME,” she said, explaining why many rely on unregistered design rights. As well as applying for and owning design rights, SMEs then have to be able to enforce them to be truly protected, but few have the budget.

However, at ACID, Macdonald has found naming and shaming to be a “key part” of a brand’s protection.

“Social media provides another justice perspective,” she said, as it offers a free and public alternative to designers who do not feel able to pursue legal action.

Fellow panellist Shams, legal counsel for French sound technology company  Devialet, explained that “good design is crucial to business success”. She added that it is particularly important for start-up companies, as a design patent could provide exclusive rights for at least ten years.

Compared to other IP protection, design can be a very-fast moving area. Shams explained that registering for a design patent could take six to nine months, compared to the two or three years a patent application could take.

However, the products covered by design patents often have a short life.

“The lifespan of design in apparel is about three months,” Shams said. The threat of mass producers claiming an influence or inspiration, as well as the ability to share designs across social media, are just two of the factors contributing to the limited life of apparel designs.

Shams referred to sports brand Nike’s launch of auto-lacing "Back to the Future" trainers which, within 15 days, were being  copied and manufactured by a factory in China.

Plane, of  Simone Intellectual Property Services, warned against neglecting China when prioritising which territories to protect designs in. China often “falls very low on the totem pole” for designers looking into protection, he explained.

He said “counterfeiters in China are a lot better at getting a design patent filed than my clients are”, aided by the “relatively quick process” and "inattentive" procedures in China.

“China’s patent offices are not necessarily conducting the most diligent patent searches,” he explained.

Plane suggested that those applying for designs “anywhere else” should keep a “very close eye” on Chinese activity in the same area.

“There’s no downside to filing a design in China,” he said, particularly at a time when, increasingly, “pirates certainly recognise the utility of design patents in China”.

INTA’s Power of Design conference is taking place on February 26 and February 27 in London.

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28 February 2018   It is “very important” for in-house IP lawyers at fashion brands to maintain a good relationship with the designers, according to James Sweeting, senior IP counsel at Superdry.
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