JEWELS IN THE CROWN?

The UK has some of the most talented jewellery designers, creating and bringing to market many stunning, new, original designs.

Creative design isn’t something that just miraculously happens; it takes fine-tuned creative skills,
mastering the use of a myriad of different mediums and techniques which are the hallmarks of
contributors to the ever changing diversity of jewellery design. But how do jewellery designers
protect their designs from being copied? What are the practical, proactive, low cost steps that a
jewellery designer can take to ensure that, at the first point of market entry, most often the
exhibition arena, awareness is raised about design ownership? First and foremost take a proactive
rather than reactive approach to intellectual property. Prevention is better than cure!!


DESIGN REGISTRATION


One of the most important aspects to any designer must be their attention to design drawing
document management. Clearly, official design registration is the most obvious route with either a UK
or European design registration. Relatively new European design legislation has created a design right
which is valid in 27 member states and lasts for 25 years. www.oami.europa.eu. The good news about
a design registration is that the designer has a piece of paper, a certificate, which says they effectively
“own” the design. How does that make a difference? Well if you discover an alleged copy in the
marketplace it is a much easier legal route to pursue as the registered Community design is a
monopoly right so you don’t have to prove copying. Who can argue with a certificate which confirms
your design ownership? If you do have a design registration, always publicise that on your website
and marketing material, it sends a clear deterrent message to those who may copy that you have
taken the time, effort and trouble to protect your new designs.


UNREGISTERED DESIGN – KEEP A DESIGN AUDIT TRAIL


The other route to take is to rely on unregistered design right and so keeping a design audit trail from
the seed of the idea to first point market entry is key. (Signed and dated photographs of prototype
stages through the development process and all the way to the finished product will provide
compelling evidence should you need it). The stronger this trail is, the more persuasive the argument
becomes should you need it to pursue a copyist. Simple signed and dated drawings kept in an efficient
system will be worth their weight in gold if you have to take legal action. ACID members can send
unlimited copies of designs free of charge to the ACID design register, providing valuable independent
evidence of date of design creation.


WORKS OF ARTISTIC CRAFTSMANSHIP


Some jewellery designers who produce works of artistic craftsmanship may be able to rely on
copyright which is a much longer lasting right – 50 years for commercial use. However, it is a non
registrable right, so document management and design audit trails are just as important.


HOW CAN I STOP PEOPLE COPYING?


Often designers will say, “How can I stop people copying? Tell them! There is no more effective way
than a simple intellectual property statement on your website and marketing materials, “All
intellectual property rights in our designs are and will belong to (insert your name here). Any
infringement will be pursued vigorously.” Better still accompany it with the ACID logo which members
can use. There is also nothing wrong with making a sign showing the intellectual property statement
and displaying it on your stand – it sends a clear warning message that you know and understand your
rights and you value the IP in your designs.


MOBILE CAMERA PHONES - CAUTION


In the era of mobile phone cameras often photographic images of new designs can be around the
world in seconds and on the production line before you pack up your stand, so a no photography sign
is a good idea. By controlling who take photos of your product range, you minimise the risk of
unknown persons taking photos that eventually could lead to copies on the market. Vigilance too is
key with visitors to your stand.


DO YOU REALLY KNOW WHO YOU ARE TALKING TO ON YOUR STAND?


Always take a business card from visitors (and on the back just jot down the time, date and exhibition
and know exactly who you are dealing with, or hire a data pen when booking your stand). If someone
does not have a legitimate business card always take their business details before letting precious
marketing literature into hands that don’t have trade credentials. If, in the future, someone who has
visited your stand produces look alike designs, then you have evidence that they visited you on a
particular day at a specific exhibition.


WHAT’S IN A NAME?


What’s in a name? Remember that the more you become successful at what you create and market,
the more your buyers will associate you and the name by which you are known with that
product/range and service, so brand protection is key. Building a brand is a fairly intangible
commodity but once you have established your position in the market place, if not before, seriously
consider getting a registered trade mark – you have many options but probably the most important
are either a UK or European Community trade mark. If you are dealing in a particular territory then a
brand protection strategy should include registering your brand in those areas.


WHAT SHOULD I DO IF I DISCOVER I HAVE BEEN COPIED?


Number one, try to stay cool and don’t panic. It is difficult because it feels like violation and it
is, quite simply, unfair as well as potentially devastating commercially.
If you are at an ACID Accredited exhibition you can call the ACID legal hotline which is
available to all exhibitors regardless of being members and they will have a protocol (a free
grass roots mediation service)


If not, don’t march onto another stand and accuse someone of copying – in the UK you can
get into a lot of trouble if, eventually, it was proved to be a groundless threat.
Instead, gather your own evidence together, ensure you have easy access to your design
audit trail – drawings/ photos of prototypes, examples of any editorial, awards etc.
Take the details of the stand number, exhibition, time and date and try to get an example of
the product or the literature marketing it. If possible ask the organisers if you can take a
photograph of what you consider to be an alleged copy, after hours. Your first port of call is
the exhibition organiser’s office to report the incident and some organisers offer really
positive help. After all, it is their duty to try and provide a safe commercial environment, free
from copying. Logging the complaint with them and their acknowledging (in writing or by
signing a document) that you have made the complaint will be powerful evidence should you
later need to rely on it.


Contact your solicitor or trade association immediately - it really is better to have an
intellectual property specialist because they do know and understand the complexities of
design law in this context. Often a comprehensive letter before action can be a shot across
the bows of an alleged copyist and, in worst case scenarios a letter can be delivered to the
stand during an exhibition. Never sue on principle, always work out whether there is a
quantifiable loss and that this can be demonstrated.
Often, bringing parties together in a mediation framework can offer more creative solutions
such as collaborative or licensing partnerships. Always try to find a commercial route to meet
your objectives if you can.


One of the most important things to remember is that intellectual property should be seen as a
positive force and having sound industry standard legal agreements in place to clarify your
commercial relationships is always a good idea. If you’ve got your IP house in order you leave the
door wide open for sound business relationships as well as considering brand extension opportunities
e.g. licensing deals, franchising and joint design collaboration, all really excellent ways to leverage and
convert your design credentials into commercial (and fiscal) reality. It can take years to create a great
brand name and an associated product range and, relatively, moments to destroy through copying. So
make sure you are ‘Up on your IP’ when you hit the exhibition!


Copyright ©Dids Macdonald 2009. Article first published in Jewellery Focus

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