The repeal allowed a short transitional period for selling off
existing stock, and this has now come to an end. If you hold any
remaining replicas that could fall within the scope of copyright in
an iconic design, these need to be destroyed immediately, or you
should approach the copyright owner for a licence.
Mere "possession" in the course of business was
originally considered to be an infringement following this repeal,
meaning that businesses that had previously purchased replicas for
their shops and restaurants (for instance) could have been caught
even though they had no intention of trading in those products.
However, Gowling WLG submitted comments on the draft, and the
Government acknowledged the problem and clarified the Commencement
Order so that it does not cover mere possession in most instances.
This should remove risk for a number of businesses.
As a reminder, the repeal also affects 2D images of protected
products. This could affect architects, CAD software producers and
book publishers, where they show images of iconic products.
Depending on the product protected, it may be that these
organisations will now need a licence.
It is worth bearing in mind that copyright owners will have a
high hurdle to overcome to take advantage of this repeal; to
attract copyright protection, the article must be a sculpture or a
"work of artistic craftsmanship". These terms have not
been the subject of large amounts of case-law, but what there has
been (including Lucasfilm) suggests they will be
interpreted extremely narrowly.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The focus on the product being obvious or anticipated as at a certain date provides powerful protection and commercial certainty without conflicting with a patentee's ability to obtain patent protection.
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