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Welcome to Fortune Law's Briefing Update
Greetings! 
Welcome to our briefing update for September 2010.
Jonathan I. Schwartz, President and COO of Sun Microsystems said this:
"I believe in intellectual property. In my view, it's the foundation of world economies, and certainly the foundation upon which Sun Microsystems was built. Copyright, trademark, patent - I believe in them all. I also believe in innovation and competition - and that these beliefs are not mutually exclusive".
We at Fortune Law are passionate about intellectual property and regularly advise clients whose core business focuses on design, trends and inspiration on all levels.
Our client of this month is South London based Lifestyle Interiors by ASQ, which offers its clients and customers a full Design & Build service for all manner of home improvements. Using experts, they analyse and advise on cutting edge design, supply and installation of kitchens and bathrooms all the way through to more innovative larger scale building projects. Lifestyle Interiors have a charming showroom in Streatham Hill, London, where they host various events including cooking demonstrations!
This month we feature an article on Henry the iconic vacuum cleaner's big day in court and also set out a basic guide to patents, trademarks, copyright and design rights in the UK.
If you have any questions in relation to any of the matters set out in this briefing update or wish to speak to us in respect of any other legal issues do call or email us on 020 7440 2540 or skassam@fortunelaw.com . We are always happy to help.
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Featured Client
Sadia Afghan of Lifestyle Interiors by ASQ |
Lifestyle Interiors by ASQ
Sadia Afghan
www.lifestylebyasq.co.uk
"Having started our own business, one of our first key requirements was to put in place well drafted Terms and Conditions before taking on any client work. We knew the importance of clarity in both agreeing customer orders and setting out the terms on which our business was to operate. We knew what we wanted but didn't know how to express ourselves in writing. After speaking to Fortune Law, we were confident Lifestyle Interiors' Terms and Conditions would help us service our client needs better and also protect us against any unexpected issues that may arise. Instead of a box-standard set of Terms and Conditions, Fortune Law tailored them so that they suited all of Lifestyle Interiors' needs and more. We look forward to working with Shainul and her team in the future and would recommend them to anyone. Thanks Shainul!"
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Checklist for Terms & Conditions Special Offer
If you, like Lifestyle Interiors, need some bespoke terms and conditions for the supply of goods, or are currently reviewing your existing ones, email skassam@fortunelaw.com for our complimentary checklist which sets out the various areas you should be thinking about.
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Form Or Function - How Henry the Hoover Cleaned Up In Court 
Numatic International Limited (Numatic) commenced High Court proceedings in May 2009 alleging that Qualtex UK Limited (Qualtex) threatened to place on the market a product which, if marketed, would, by its very appearance mislead consumers into thinking it was a Henry -one of Numatic's well-known vacuum cleaners.
The Henry vacuum cleaner they said was a well recognised domestic appliance by virtue of its unique and distinctive tub-type shape, with a domed black lid which some people recognised as a bowler hat and a printed smiling face. A hose emerged from Henry's "nose" giving the appearance of an elephant's trunk.
Qualtex decided that they were going to introduce a vacuum cleaner to the market and were of the opinion that, provided that they chose a design in which all relevant intellectual property rights (such as all the various forms of national and community, registered and unregistered design rights) had expired, they should be free to do so, provided that they did not use any Numatic trade mark, such as the name "Henry".
In March 2009, a prototype of the Qualtex replica product was displayed at a cleaning show at the NEC in Birmingham. The replica had no brand name and was blue in colour as opposed to red but did however have a black bowler-hatted lid just like Henry's. Numatic commenced proceedings for passing off on 19 May 2009, accompanied by an application for an interim injunction.
Numatic were successful in their application for a number of reasons. The court held that although the design protection for Henry had expired in 2008, it was protected by goodwill due to the its unique combination of features and evidence suggested that the marketing of Henry had personalised it to more than just a shape in the minds of the public and it had taken on a meaning more than mere functionality.
This decision shows that passing off can be extended to protecting product shape and consumer perception can be a decisive factor.
As always, if you wish to discuss any matter with us do drop us a line or pick up the 'phone.
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Intellectual Property in the UK - The Basics
Patents
A patent must be novel, involve an inventive step, sufficiently describe the invention, be capable of industrial application and not fall within a statutory exclusion.
Registration is handled by the UK Intellectual Property Office (UKIPO) and protection usually lasts 20 years from application.
Trade marks
UK registered trade marks must be capable of being represented graphically, distinguish the goods and/or services of one undertaking from those of another undertaking, be distinctive, cannot be identical or confusingly similar to a third party's registered or unregistered mark and must not fall within any excluded categories specified by statute.
Registration is also handled by the UKIPO and initial protection lasts 10 years, and can be renewed indefinitely provided the mark remains distinctive.
Unregistered trade marks are protectable through the common law tort of passing off. Where possible, trade marks should be registered, as passing off actions are expensive and the issues of misrepresentation and damage can be difficult to prove. In order to succeed in a passing off action, the party in question must prove that the sign has acquired sufficient goodwill in the UK, a misrepresentation has been made by the defendant and damage has been suffered by the claimant.
Copyright
A work is protected amongst other things if it is original (except for sound recordings, films and typographical arrangement), and if it is recorded or fixed in permanent form. Protectable works include literary, dramatic, musical and artistic works, databases and sound recordings, films and broadcasts. Subsistence arises automatically; no registration procedure exists. Duration of the period of protection depends on the work, but is usually between 50 years and the life of the author plus 70 years.
Design rights
There are both registered and unregistered design rights. A registered design must be novel, have individual character and not fall within a statutory exclusion. The UKIPO handles registration and initial protection lasts for 5 years, with 5 year extensions available up to a maximum of 25 years.
If in any doubt at all, do contact us before making a costly mistake. It is better to ask twice than to be lost once. Feel free to contact us with any questions on 0207 440 2540 or email us at enquiries@fortunelaw.com.
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Please note that information contained in this briefing update does not constitute legal advice. All statements of law are applicable to the laws of England and Wales only. Copyright Fortune Law 2010. All rights reserved. |
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