Design Coursework Advice
In our classroom discussions I gave some indications of ideas that students might like to
explore in your essays for week 12. To remind you, here is the question:
Having regards to the case law concerning copyright law and design law, and in
particular J Choo (Jersey) Limited v Towerstone Limited & Others High Court of
Justice, Chancery Division, 16 January 2008 [2008] EWHC 346 (Ch) 2008 WL 547611,
discuss whether you believe whether the system of intellectual property protection
available in UK law is fit for purpose, with specific reference to the fashion industry.
3,500 words.
Clearly, everyone should download the Jimmy Choo case. You should all be able to do
this now from one of the legal databases which GCU subscribe to, such as Westlaw or
Lexis-Nexis. I gave information on this as an Announcement on GCU Learn before the
presentations, based on an email which I sent to a student. I have discussed the Jimmy
Choo case in class. It concerns Registered and Unregistered Community Design Rights
and was a civil action that was brought against a retailer. Students should think about the
following issues:
What are registered community design rights? How are they obtained? What protections
do they give the rights holders? How high a standard is required to be met to obtain
registered design protection? Discuss that standard, and comment on its usefulness in the
context of fashion and luxury brands. What defences are available to alleged infringers of
a design right (in particular that the registration should be revoked).
What are unregistered community design rights? Consider the same questions as for
registered community design rights.
What have the courts had to say about issues surrounding community designs. We have
discussed the Karen Millen v Dunnes Stores case in this respect.
What about the UK unregistered design right? Is that different again from the community
right? What have the courts had to say about that, particularly in the Teddy Smith and
Lambretta case.
Students then might want to consider wider issues as the fitness of design rights for the
purposes of protecting fashion designers,
For instance, there is the persistent issue of whether copyright protection should apply to
fashion designs as artistic works, or even as works of artistic craftsmanship. The
difficulty has long been that the law, especially in the UK but not only here, has sought to
distinguish between artistic works and functional products, and granted protection for
much shorter periods to the latter. Students might ask if this has been a useful distinction
or not? In particular, it might be worth discussing the interplay of copyright and design
rights in the UK. Until October 2014, and the new Intellectual Property Act of this year,
it was the law that when a product also incorporated something in which copyright
subsisted, then industrial exploitation of the that copyrighted work in a product meant
that protection of copyright got reduced to the same period as the protection afforded by
design rights. Now s.52 of the Copyright Act has been repealed by the 2014 Act. What
are the implications of this for fashion designers, do you think, if any?
The IP Act also introduced new criminal offences in relation to copying of registered
designs for the first time. Do you think that is wise? Also, consider the defences that
might exist for someone charged with the criminal offence of copying a registered design.
How important is knowledge of wrong doing, especially if there is a defence that the
design right ought never to have been granted in the first place.
Students might also wish to consider that if trade mark protection can be extended
indefinitely, and that if trade dress can be protected by the law of ‘passing off’ in the UK
and in other legal jurisdictions, might that not be sufficient for most fashion businesses to
rely on?
Also, it might be worth considering the international protection of design rights, beyond
the EU, for instance in relation to the US and countries, including China, which have
signed up to the TRIPS agreement for the protection of trade related intellectual property
rights. Given that this class is an international one, I would very much like to read about
your own understanding of design rights in your own parts of the world, by way of
comparison with the EU and UK. I have put up a set of set slides from an American
fashion course which might be of assistance in this respect, and which supplement my
own.
Also, there are interesting issues for the fashion industry about whether its very nature as
a trend based business, means that protection for design rights is perhaps an unnecessary
expense.
I would expect students to bring their own original research and insights to the discussion
of these issues. It is important to remember that this is an academic essay however, and it
is important to respect the genre. Academic essays are supposed to demonstrate research
in other academic published works, and to a standard that is higher than a commercial
magazine or blog, no matter how instructive and helpful those may be. I have indicated
useful journals to look at before, such as Managing Intellectual Property and
Journal of Brand Management (both available electronically via GCU Library page). You
may find others, beyond the readings which I provided links to from GCU Learn for your
reading week. I have also indicated that students should make use of the “Discover”
search engine which can be accessed from the GCU Library home page.