CLASS 99
The blog for design law, in Europe and worldwide. This weblog is written by a team of design experts and fans. To contribute, or join us, or for any other reason, email class99@marques.org.
Want to receive Class 99 by email?
Click here subscribe for free.
Click here subscribe for free.
Who we all are...
MONDAY, 5 AUGUST 2013
Parties tied up in bondage litigation
In Uwug Ltd and another v Derek Ball t/a RED [2013] EWPCC 35, 30 July 2013 (not yet available on BAILII but available via Class 99 here), Recorder Amanda Michael, sitting in the Patents County Court, had to deal with claims for infringement of UK registered and unregistered design rights in a device consisting of a metal frame and certain parts of a leather sling, both made for use during sexual activities involving bondage.
Taking the sling first, according to the Recorder, the shape and configuration of the relevant parts of the sling were original within the meaning of section 213 of the Copyright, Designs and Patents Act 1988; they were not excluded by the "must fit" exception under section 213(3)(b)(i) of the same Act, since aspects such as the angles of attachment, distances between the straps, and other elements, were not dictated by the need to fit the user, nor did they connect with the user in any way. It transpired however hat the claimant did not actually own the design right in the sling, since there was no evidence that the designer was an employee of the claimant when he made the design, nor that he ever assigned it to the claimant. If the claimant had indeed been the owner, it would however have succeeded in its infringement claim in respect of the sling.
There was better news for the claimant when it came to the metal frame, which the claimant had registered as a design. On the evidence it appeared that the claimant had commissioned the defendant to create the design in return for payment, so that both the design right and the entitlement to register it belonged to the claimant: further, the frame design had been infringed.
The moral of this decision is clear: it is of vital importance to make sure that the rights you rely on are yours before suing for infringement. Posted by: Blog Administrator @ 10.01
Tags: infringement, ownership, registered and unregistered design rights, United Kingdom,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA485
Parties tied up in bondage litigation
Taking the sling first, according to the Recorder, the shape and configuration of the relevant parts of the sling were original within the meaning of section 213 of the Copyright, Designs and Patents Act 1988; they were not excluded by the "must fit" exception under section 213(3)(b)(i) of the same Act, since aspects such as the angles of attachment, distances between the straps, and other elements, were not dictated by the need to fit the user, nor did they connect with the user in any way. It transpired however hat the claimant did not actually own the design right in the sling, since there was no evidence that the designer was an employee of the claimant when he made the design, nor that he ever assigned it to the claimant. If the claimant had indeed been the owner, it would however have succeeded in its infringement claim in respect of the sling.
There was better news for the claimant when it came to the metal frame, which the claimant had registered as a design. On the evidence it appeared that the claimant had commissioned the defendant to create the design in return for payment, so that both the design right and the entitlement to register it belonged to the claimant: further, the frame design had been infringed.
The moral of this decision is clear: it is of vital importance to make sure that the rights you rely on are yours before suing for infringement. Posted by: Blog Administrator @ 10.01
Tags: infringement, ownership, registered and unregistered design rights, United Kingdom,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA485
MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.
The Class 99 Archive
