When does 'taking inspiration' cross the line? Panel with John Ayton MBE (Links of London, Annoushka), Martin Darbyshire (tangerine) and Sam Jacob (Sam Jacob Studio), hosted by intellectual property lawyer John Coldham (Gowling WLG), to discuss how designers can use IP to help the business side of design.
"Imitation is the sincerest form of flattery that mediocrity can pay to greatness". That was Oscar Wilde's view, but for designers, being ripped off risks being very harmful indeed. Is being copied ever good news?
Join our webinar, where leaders of design-led businesses join Gowling WLG's UK Head of Brands and Designs for a discussion on how designers can use intellectual property to help the business side of design.
John Coldham: Welcome to all of you who have joined us already. My name is John Coldham and I am hosting today's event. First of all I would just like to say welcome. Welcome to our eighth annual event as part of London Design Festival.
This is our first one where we have done it online, which has meant that more people have been able to join us! So if this is your first time at one of events, welcome.
A warm welcome back to all of you who have attended on previous occasions. I am sorry that this time we cannot offer you a drink overlooking the Thames, but I hope we will be able to do that again when we meet next year.
As the discussion usually carries on after the event and sometimes long into the evening, which of course, by the way we start later than 11 o'clock, which of course is not possible this year. I would encourage you to provide your comments and questions as we go along in the Q&A function. I am impressed that a couple of you have already done that which is very keen indeed, so thank you.
I would encourage you to do that because that will help with the discussion. We will try to incorporate as many of your questions and comments into the discussion as we go and we have also allowed some dedicated time at the end to deal with questions.
There may be some questions that are either too specific or we run out of time. If that is the case, we will try and get back to you directly after the event.
If you have any colleagues or other contacts who would maybe would have liked to have attended this webinar but have not been able to make it, we will be sending you a link to the recording of the webinar by email afterwards and it will also be available on our website in a couple of days' time.
When this webinar is finished, we will be sending a feedback form. I think it will appear on your screen when the webinar finishes but we will also be emailing a link to it afterwards. I know every webinar you attend will say something like this, but we really do appreciate the feedback that we receive and it does help inform our future events, so please do provide any comments - good or bad and we have thick skins, please do let us know if there is anything that you would like us to improve.
If you are interested in finding out more about design law generally, we have dedicated webpage at Gowlingwlg.com/designsforlife. This has a guide to design law and its protection as well as podcasts and videos from our previous London Design Festival events as well as elsewhere.
I should mention that this event is deliberately not too legally focussed. We are running a series of more legal webinars on different parts of brands and designs law, including a more in-depth look at the impending changes caused by Brexit, in the coming weeks and we will provide you with further information about that at the end of the webinar, but also by email.
In our advertising for this event, we quoted Oscar Wilde's infamous line that "imitation is the sincerest form of flattery that mediocrity can pay to greatness". Now whilst this quote might perhaps make those who are ripped off feel morally superior to those who do the copying, it does not generally help the bottom line. But is it that straightforward?
Can being copied ever be good news?
The default answer from most brands and designers will, of course, be no! it is a nightmare! But the issue is perhaps more complex than this. So we felt it would be interesting to examine it in more detail today.
How can you turn a seemingly negative experience into a positive one ?
How can be copied be something that you can turn to your advantage?
The purpose of this event is to look at different perspectives. To encourage you to look at the issues around intellectual property infringement from a different angle. I have already mentioned our other webinars over the next few months that will help you through the legal issues, from strategy to practicality, so we have deliberately kept off the specifics of the legal side in this event.
To do this, I am pleased to welcome a stellar panel of speakers.
All of them, have at least some link to law as I shall explain but the reason we have invited each of them to join the panel today is due to their involvement in design.
Martin Darbyshire is co-founder of the well-known design agency Tangerine. Martin has generally supported our event at the London Design Festival ever since we started, eight years ago and has joined our panel each year. Martin is - and this is just a selection of his achievements - he is trustee of the Design Council. He sits on the government's infrastructure exports board and he judges the Red Dot awards and his design achievements include, first of all include the Sky Plus box and many others.
Martin's link to law is that he was an expert witness in a major intellectual property dispute about aircraft seats. A case that ended up at the Supreme Court.
John Ayton, MBE co-founded the well-known jewellery chain, Links of London with his wife, before selling it in 2006 and co-founding Annoushka - a top quality jewellery brand that makes beautiful and unique designs.
John has also been involved in various other brands, including Bremont watches and has many other claims to fame besides. These include carrying the Olympic torch as part of the London 2012 relay, which was as a result of Annoushka and his support for British athletes through fundraising and ambassadorial efforts for Team 2012 and John's link to law is that he originally practised as a lawyer, in both Hong Kong and London before thinking better of it and moving into the world of design.
Sam Jacob is an architect with his own studio in London . Sam is also a professional of architecture at the University of Illinois and director of night school at the Architectural Association.
Sam has also written some fascinating opinion pieces of Dezeen over the years and Sam's link to law was unknown to me until we had our first chat about participation in this event. It turns out that Sam's dad is the now retired Lord Justice Jacob. Perhaps one of the best known - well perhaps THE best known intellectual property judge of the last few decades and responsible for many of the leading cases that we follow to this day.
Most of us in the IP world will never forget our hearings in front of Sam's dad. I gather that Sam has told his dad he is speaking about IP today and I notice that he has not decided to sign up.
Anyway, enough of that, let us get going! First off, I thought it would be helpful to go straight into the question at hand - I do not want to be accused of not having dealt with the question that we advertised - which is, can copying ever be good news.
John, why do you not go first and give us your take on this question.
John Ayton: Well I think it is interesting. All the brands that I have been involved with have had an important point of difference, so whether it was Orlebar Brown it was the fact that it had a buckle on the side of the short, reminiscent of Saville Row tailoring. For Bremont it was a construction of a three part case. For Links of London, it was Links of London it was a sweetie bracelet with a very unique way of attaching charms - and at Grind it is about the pink tin.
So these were always considered to be absolutely core to the brand and something that should be defended at all costs but as we all know, defending intellectual property is not straightforward and it often requires a sort of, many tiered approach and a great example of when it can be good news was very early on when we started Links of London in the early nineties we were doing many cufflinks and suddenly M&S produced a train cufflink which was an identical copy of the one we produced months before.
By looking at the size, we were able to tell that they had taken a cast from the original and it was so clear by the small amount that every single dimension had been reduced, that we had a very strong case of not only copying but actually taking a mould from the product.
Anyway, a few weeks later, M&S did the decent thing. Paid us the princely sum of £10,000 and kept our business going so I shall be eternally grateful to M&S for their financial support at the early stages of that business. When it does not go to the core of your business as this did not, it can occasionally be good news.
I think if we look at the slides, I will just talk you through a current issue that we have. At the end of the day, when design and craft is right at the centre of your brand, which is very much where we are with Annoushka. The most important thing is we want to be perceived as original design, individual and creative and this can be difficult in an industry that has been going for many many thousands of years and is very limited by the functionality of jewellery.
People constantly reinventing new arts designs. But for us, the fact that it is an important part of our brand value that our design is innovative and not imitative, we had difficulty over this particular collection called 'The Crown Collection' and if you look, you can see it is very reminiscent of a crown. The neat thing about this is that two parts will join together to form a laced structure and it is very neat, very comfortable and so forth.
We launched this in 2016 as an original design. We featured it in this advertising campaign you can see and if you move on a slide, you will start to get the idea, the way that they slot together. Annoushka was a very early pioneer of stacking rings. If you move onto the next one, you will see another variation of the way it was shot and then if you move onto the next one, you will start to see the imitations.
But not only has the product been imitated, but also the way that it is presented. For us, this went one step too far in that it created a passing off situation rather than a taking inspiration. I guess what I want to say is that our worry was, will it affect sales? Well, that is a difficult one. Maybe people will find the design too common? And feel that it does not deserve the premium pricing or conversely that people are producing it in lower quality metals and so forth.
I think a lot of smaller companies have a real problem with imitation with larger companies who then splash the product over advertising pages and social media and the consumer will often look at it and say, well actually were the originator of this interesting design and make the originator look imitative.
A lot of it is about reputation and how close it sits to the core proposition of the brand.
John C: John when you have had problems - please do not name any names, but when you have had problems with any other brands, either on these slides or otherwise, what have you done about it? Have you gone down the legal route? Have you had a word in an ear? Or how do you approach it at Annoushka? Obviously if you do not want to answer the question because it is how you deal with it may be your business, then feel free not to but any pointers for those listening as to what you found works best.
John A: I think it is very much - it is not, one size fits all. I think that certainly within the jewellery industry I think you have to be - it is very different if you get an interpretation by another jewellery business which is taking an existing design language and interpreting in terms of trends. It is very different from getting a high street retailer who might be just taking a design and replicating it in a cheaper fashion.
For the latter, we would tend to instruct lawyers and go for a much stronger response. And in the past that has resulted in billboards being taken down, catalogues being pulped and the like. From a jeweller point of view and looking at other jewellers, I think that can be much more subtle and that will often start with, hang on a minute you are getting very close here. Will you please take a look at the inspiration and we do, on quite a regular basis, write that sort of letter. I think it is good for the industry - keeps everyone in check.
John C: and do you find, last question before I move onto Martin - do you find - we have had a question from somebody who wants to know basically how do sole traders and small businesses deal with issues like this. Annoushka is a reasonably sized brand and if you threaten legal proceedings, people probably believe that you will do it but you pointed out I think that sometimes just pointing out the infringements to the brand can sometimes be enough if I have understood what you are saying correctly because it may be that the left arm is not talking to the right arm and they did not know that their supplier had copied and so on.
Sometimes a polite'ish letter explaining the problem can have an effect, that seems to be what you are suggesting, is it?
John A: Yes I think it can. I think there are other ways of publicising - I mean Diet Prada would be a good example, social media where they will often feature the most outrageous forms of copying and our brave about putting up the original and the pretender. That is an interesting way, where you can draw attention to the fact that you have been copied but there again, you have got to - you will have a lot of legal threats thrown back at you if people think you are being libellous or so forth.
I think in order to take a large company on as a sole trader and as a small company, you have got to have - it is very very expensive.
John C: Yes, I think - I mean, obviously as you say there are ways to deal with it that are not necessarily quite so expensive. I should mention - put in a word for the IP pro-bono scheme, which is a scheme that lots of the major intellectual property firms are participating in, including us where you can if you are a small trader, make a bid for pro-bono representation specifically to do with IP and that is a very good scheme and sometimes you can deal with these things through an initial skirmish that makes it go away.
Anyway, we had better move on. Conscious of time. Martin - going back to the question of, can be copied ever be good news? You work for a - well you run a design consultancy so I imagine I know what your answer is going to be, but why do you not give us your take on this?
Martin Darbyshire: Thanks John. So when I first talked about this issue and we had various chats before leading up to the event. For me, the categorical answer is, no and I think if you are a design consultancy that is essentially creating value for clients through design or innovation and IP, then that value is critical and of course, IP and understanding IP is also critical for our clients.
Our clients are not just looking to us to create original things. They are making us sign contracts that tell them, we are not going to copy anybody. They are also asking us to give them advice around IP in many ways, which generally is, this is my level of understanding, but you need to seek advice of a professional if you want to do something properly and also, in many cases they are making us sign contracts or asking to sign contracts where we will indemnify them against any losses should there be an infringement in the third party's IP.
Obviously we work very hard to avoid that but that is what businesses are expecting of us. I think the short answer to the question really is about context. It very much depends on what you are doing.
I think having reflected on it, there are some exceptional circumstances though where either on the one hand it is a slight skew on whether it is a copy and whether it is about learning from different sources because I think design is in iterative process. There is a substantial body of prior art. Seldom is anything utterly original and actually, often us at originality is not very commercially successful.
It is a complex area. If we can maybe move to the slides and I will show some examples John that will try and perhaps put things into context.
In this first example we are working together with a branding agency for CEPSA who are the second largest petrol station or petrol provider in Spain. And we created, together with Saffron this flagship station for them. This version is just outside Madrid so it is the first installed.
In many ways, we were learning from other sources. It was the first indication where ETFE ladders had been used to form part of the roof and obviously there is IP around those ladders themselves owned by the manufacturers but also there is a design registration opportunity in terms of creating a unique design, which is both distinctive looking, it attracts people to it, it is a halo for the brand.
They own the colour red as part of their brand and it is a powerful way of combining - to some degree, improved environmental friendliness because the overall canopy is lighter, self-cleaning, uses less power and is less heavy because of the approach to construction.
To some degree, in that case you are learning from sources but you could say, there is an element of copying because you have learnt from slightly adjacent sectors in architecture and then brought this technology into that sector.
If you move onto the next slide though John, in this case our ambition as designers was to really try and change the customer experience and I think the results of this project have been principally about creating a halo around the brand and some improvements during customer experience from the canopy and low level lighting, but fundamentally the thing that people touch and engage with and drive the quality of the experience they get is the interface with the pumps and we were unable to make the changes that we want to make happen in the timescale of the project and the thinking behind the idea has now disappeared into the pile of good ideas on the desk that probably will never see reality.
The principal reason for that being of course, retype approval of a new petrol pump is a substantial investment for a client but changing - even simply changing the orientation of the pump and separating the controls from the pump and positioning somebody in the right place and using a screen in a way where you can see the person inside the shop that you are paying and they can see you, means that you can dispense fuel more quickly. Things are in the right position, it improves the customer experience and it delivers better satisfaction.
I would love for this idea to be in the public domain, then others can learn from it and try and encourage the ability for change to happen that would not normally happen unless you become conscious of the value that you can bring through adopting different approach.
In this case I think there is a very definite argument for more open sourcing of these ideas and trying to ensure that greater change, greater innovation, greater transformation actually is delivered.
John C: Sometimes it might be said that, especially if one company decides it is not going to use something then if there is a greater freedom for that to inspire others. I think there is obviously a difference between inspiration and copying isn't there?
Martin: Yes there is and I think that you can apply the same thing to patents. Obviously, we trawl through patents, particularly if we are working in the aircraft industry, looking for new formats or new concepts it is slightly frustrating that so many of them are never actually utilised and deployed and therefore what you get is a smaller and smaller space for innovation, in a way and it becomes more and more difficult to actually deliver a bigger breakthrough or a bigger level of change.
Unless of course you have moved towards licence agreements or something with the inventors, but often the inventor has lost interest and no longer has the commercial ability to take advantage of that, so it can make it more challenging.
I am not sure how you solve those problems, but I think they are interesting problems for us to all reflect upon. So you can move onto the last example, I am also conscious of time, we need to give time for Sam to speak.
This is an example of work we have completed recently. Working together with a start-up who developed a concept for an advanced form of baby monitor. The monitor actually clips onto the baby's Babygro and it is tracking their breathing rate, their skin temperature and their movement and then providing information to a parent via alerts on a wristband or alerts on an app and it is gathering data about the baby's wellbeing.
You can also log feeding times and you can log nappy change times, so you can build up a complete picture of your baby's progress and their development and we are also, with that same client, transiting this concept into the elder care sector because essentially the data that you are gathering, can be utilised in equally clever ways to the benefit in the elder care market.
Our client, to start-up, sensibly have patented a concept around the way these devices communicate. So, they have thought early on about the application of this concept not just relating to baby care but also potentially to other sectors and we registered the designs for them or supported them in registering the designs so that the feel and format of the design is protected in appropriate markets.
But of course the value that they are going to create over time, and I think there will be an increasing number of examples of this nature, is actually the data that is gathered and then how that data is then turned into machine learning that brings an improvement or a benefit and there is clearly a big question around how open sourced that understanding is, because if this is a healthcare product that could benefit society at large, there is a huge opportunity to approve wellbeing within the country and also, potentially take huge pressure off the NHS.
If you can track your elderly relative remotely - understand how much they are moving around, what their activity levels are like, what their skin temperature is like, there is a massive amount of data you can gather and a massive amount of reassurance you can get a as a carer and this technology is available now. It is going to become available much more quickly but open sourcing of that and more transparency around the learnings that have been gathered could really help society in general.
In that case I would say, there are cases where copying following or having available material that lets you accelerate your learning and development is clearly of huge importance.
Okay. I think that is my bit. Can I hand over to Sam.
John C: Yes. Sam? Sam why do we not look at a slightly different angle now, literally maybe because looking at architecture. I will just move on from that slide.
Sam Jacob: Yes. Thanks. I guess, in the conversations we have had leading up to this event, we have talked about different kinds of design. Different sectors and different reasons why you might be hired as a designer. Different ways in which the projects you work on, exist in the world and in some ways, architecture is very different because it is not really about brand. It is not really about product, in the same way that John and Martin have been talking.
In fact, the ownership that you have in terms of intellectual property, is different. It is in the drawings that you produce, not the thing that you make. Maybe that is partly why I would say I think copying is very important and useful way of culture developing and of course it is intrinsically part of all creative practice, but I would say perhaps especially architecture, which often tries to make something which is civic. Which often uses things which are very recognisable.
I have got some examples here. These are examples where copying is both weird? And produces something very different. On the left of the screen is St Peters in the Vatican, produced by a series of different architects - through Michelangelo so it is a very top notch piece of work.
And on the right is a church - the biggest church in the world in Ivory Coast - Our Lady of Peace of Yamoussoukro which was built by the president after independence and is almost a replica of St Peters and it was built as a gift, in a sense, to the Catholic church and it was about the Ivory Coast and the president establishing certain kinds of links with the Vatican, which was to do really with power. So the copy here has a very specific reason why they were using St Peters.
This is maybe a more familiar story, where we produced replicas and copies of buildings for specific reasons, in terms of heritage. So on the left, the Frauenkirche in Dresden which collapsed during the allied bombing raids in the second world war and on the right is its reconstruction.
Now, in order to produce this copy there had to be incredible scholarship and almost a forensic archaeology in order to reproduce what had already existed and in doing so, it salvaged the reputation of the architect who had built the original building which people had said, oh he was not very good structurally. But actually the process of conservation and reconstruction produced something which vindicated the original architect's professionalism.
Here is one - this is Palladio's Villa Rotonda on the left in Vicenza and on the right in Nablus in the Palestinian territories is a replica built by the self-styled richest Palestinian. Now Palladio, of course, was an architect who was very interested in copying because he copied lots of Roman and Greek elements - like everybody did in the Renaissance.
So the elements you can recognise where they come from, but he puts them together in a way which is entirely new. This replica - I think it is interesting because the Villa Rotonda is a high point of western culture and here it is built in very contested territory. If bulldozers were sent to demolish the Villa Rotonda, it might be a very different news study. Again, there is a motivation as to why something might be copied that I think is interesting. The copy might not be the same as the original, even though it might look the same.
A couple more, John. Next more - as a designer I am really interested in making copies and replicas. This was a very small project for the Architecture Foundation at Highgate Cemetery and on the left is a mausoleum designed by the Austrian modernist, Adolf Loos which was never built but was a very famous project in architecture.
On the right is our one-to-one model of it. Constructed very very cheaply, as a sort of ghost of this very heavy structure. So it is about the transformation. On the one hand you recognise what it is and on the other hand, it becomes something else entirely.
Similar to the next one John, which is a one-to-one replica of a standing stone from Avebury cited on Midsummer Boulevard in Milton Keynes. We produced this by going down to Avebury, 3D scanning, CNCing polystyrene coating it and when we coated it, we coated it with the kind of paint you get on a custom car, that changes colour when you look at it from different directions.
It is a sort of remake of the Neolithic but in a Milton Keynes' type way. Again, it relies on it being both recognisable and different at the same time.
And maybe one more John. So this was a project we did for LDF exactly this time last year which was the uses of plastics and ways of rethinking our relationship to plastic and to objects. It was a big installation hung in the entrance of the V&A with an animated film in the top of this mirrored cube, which was a take on a design - a patent design by Charles & Ray Eames which was called Sea Things which was a very beautiful drawing of sea creatures.
Our version of Sea Things, started with sea creatures but became more and more like bits of plastic rubbish which are floating in those giant jars in the Pacific Ocean. That was one part of it and on the right hand side, we have remade objects from the V&A's collection. So again, we 3D scanned them, but we have made them using plastic alternative materials so this is on the right hand side. It is a Neolithic beaker made with a plastic derived from shrimp shells.
On a plinth, which we copied the profile of - partly from a famous set of stools by the Eames, but then also the profile of plastic bottles - like a Coke bottle, Dr Pepper bottle, all these kinds of things which might well end up in the ocean so we were, in a sense, riffing on these references and using them in a creative way.
It absolutely relies on copying, but we are not, I think in any sense, trying to pass off. What I like about the idea of using copying as a fundamental part of creativity is that it connects you to the world which already exists and for me that seems to be an important part of a designer's role in society.
John C: I suppose part of where that comes back into product design is that trends are a known thing. Most people are wanting to follow a trend or lead one, but they are expecting others to follow a trend, that is what happens and so the perennial questions for brand owners, designers and, of course, we lawyers is where is that line. Where are you - especially if somebody creates the first product in a category you cannot expect necessarily unless it is patented a monopoly on that entire product category so you have to expect that other people, if you are successful, will copy you and I mean that loosely in some way or another.
Most of our clients certainly expect that. That is just, fair enough, that is fair competition that is part of living in a capitalist society, but there is a line over which people expect you not to cross and everybody's line is different and that makes it very difficult to have these white line rules and as you say, in something like architecture it might be that actually copying is - I am not going to say encouraged at all - but sometimes you might be quite honoured if somebody replicates a feature and it becomes a standard feature in other buildings, as long as the rest of the building perhaps is different.
Sometimes if you are going back into history then you might want to replicate something for posterity or for art or for things like that but of course that is not taking away people's livelihoods in a way that pat copying - one of John's products is, because John's products are innovative and he wants to keep employing his employees and so on and if he is copied too much so that it undermines his business, it is going to have a negative effect on those people who he pays to be creative.
Sam: Yes and just looking at actually one of the questions which was, with the architectural replicas do you have to pay anything to the original artist?
Well, that is also to do with the controls of ownership of IP I guess, which for different types of creativity have different lengths of time but which also have a different motivation. The origins of patents or at least modern patents in the industry revolution was to stimulate investment in progress by granting monopoly.
Which is a very different thing to if you are Prince Charles and you want to copy a building from the eighteenth century, there is no way - you could possibly pay a royalty to Robert Adam or whoever it is that you were ripping off but you may be doing the same thing but it is to do with the market context.
John C: Yes. I mean the principle of most - sorry John, two seconds. The principal of most intellectual property protection is that you get a finite period of time in which you get some form of right and monopoly in order to repay the investment that you have spent on your design/invention whatever it is and obviously the government or parliament of the day has chosen how long those periods should be, sometimes in conjunction with international treaties and, for example, our patent is protected for 20 years but the deal is that if you get that patent monopoly for 20 years after that it is fair game and that is how society moves forward. John - what were you going to say?
John A: I was just going to say, I think it is a motivation is it not? If you are taking an existing design and seeking to progress that design and to develop it, that is very different from the other type of imitation which is to try and create a cheaper alternative that looks the same, feels the same and is delivered at half the price, which would typically kill a brand if it is better or reinforce a brand if it is a poor replica and you see that obviously with a lot of the discount supermarkets creating their own versions of branded product.
John C: Yes. No, exactly. I do have a specific question here for Martin - I am conscious that we are running out of time, so there are a couple of questions I would like to just deal with.
One question, Martin, which is very specific is to do with - and it is one for the design consultants who are attending. If you are a design studio designing for other people, you mentioned at the beginning that increasingly you are being expected to give assurances that your design is original and so on.
This question is quite detailed but just to gloss it, who would you say is normally responsible for insuring against the risk of the unknown in terms of design? One of the things that - just to bring this into a broader discussion - one of the things about design is that you cannot always know necessarily, whether what you are doing has been done before.
You can obviously do searches but there is always a chance that you or your employee or somebody you are working with has not necessarily realised or somebody you are working with, has realised but does not tell you that they have taken some form of inspiration from elsewhere.
There is always a risk that however original you think you are being, you are either deliberately or sub-consciously emulating somebody else. And there are insurances that you can take out to deal with those sorts of risks, so what is your thoughts on that?
Martin: The difficulty with this sector is we probably need another hour just to go through the sheer complexity of it. We have professional indemnity insurance and the premiums are growing, substantially particularly for those that involve patent infringement. So we always try and exclude patent infringement from any contract if we possibly can and we look to mitigate risk wherever we can.
Our professional indemnity insurance also covers us for a degree of any legal fees that may be required, should we be pursued. I think this is an issue of increasing importance to designers, I think there is a tremendous lack of understanding of the exposure that designers face when they just sign a contract that says they will indemnify a client against any potential losses and increasingly, legal departments within large corporations are working very hard to persuade people not to do that.
We work very hard to try and change those clauses by stating that we are agreeing that we are not going to copy somebody? If we have inadvertently we will then support them in making a change to those things where we can and we have to push back very hard. That can be really challenging because they are often using excuses like, well my legal department will not change. We have spent, recently, two years negotiating a contract with a client, purely to get those clauses modified and I think the key point I am always trying to get across is, that we are helping you create the value that you are going to commercialise and take advantage of, so why on earth should we be liable for what essentially is the potential at risk of infringement that may lead to, if you are the ones that are fundamentally.
John C: Oh, I think we have lost Martin there, or I have certainly. Martin you have paused - hopefully you will come back in a second.
Martin - we lost you for a moment.
Martin: Sorry, sorry yes my internet is gone - I am upstairs, not downstairs. Anyway, yes where did I get to, and I will be quick.
John C: It was just the last couple of minutes, so if you just want to reiterate the last point.
Martin: Okay, so I think we are very cautious about contracts of this nature. We spend time trying to negotiate the contracts to ensure that everybody is clear about what the responsibilities are and we work very hard to persuade our clients it is actually in their interest to make sure that they are adequately protected. In some ways, they are relying on our business to give them protection for what should be a substantial component of the protection that they should have naturally within their business anyway, so it is often not very meaningful for that client in reality.
The difficulty is getting to speak to the person that understands these issues and getting them to agree to that.
John C: Yes. Thank you. I was just saying, we have run to the end of our time that we had said, but the discussion - we still have a couple more questions and I am keen to cover them if we can. To the attendees, if you are able to stay you would be very welcome to and we will wrap this up within five minutes or so.
One particular question that I would like to ask is to do with enforcement. It goes back John to the question we were asking at the very beginning about the combination of how small businesses, in particular might go on the attack and the question is, would you ever use purely social media to deal with an issue?
I was going to just provide my perspective on that before perhaps asking you to say if you have got any comments on that and that is, we have seen a couple of examples recently where social media has been used in combination with a legal approach. I do think that if you have got the legal rights to rely on, it gives you more options in terms of how you enforce it.
Effectively, you have got the stick which you may or may not choose to use so I would encourage all designers and brand owners to get at least some form of protection. Either through registered designs which can be very cheap or through trademarks or whatever it is. But we have seen some very effective uses of social media, perhaps as part of an enforcement strategy.
A well-known and well publicised recent example was where Hotel Chocolat had a slab of chocolate that it alleged had been copied by Waitrose. Now, there was a lot going on with that, but the cult following that was Hotel Chocolat, took to the airwaves - if we can call it that - on social media and took offence that its beloved Waitrose brand had done this and although, I understand and we were obviously not involved, there were legal letters flying around in the background, what really won the day - perhaps the combination - but what really won the day was the social media reaction that took place as a result and the result was that Waitrose pulled the product.
Another example, which is perhaps a well-known example that a colleague reminded me about last night. I do not know if my fellow panellists have heard of Dapper Dan. Dapper Dan was an underground guy in the U.S. who decided that he would make an awful lot of money by ripping off all the major luxury brands, making knock-off versions of Louis Vuitton handbags and so on and he did this undercover for about some 20 years and was very very successful but he did it by using very original designs. All his designs were incredibly original, he just put their logos on it, which of course was highly illegal and if only they knew where he was, they might have taken action against him.
The irony of that debate and the reason I bring it up now in answer to this question about social media is, the way that Dapper Dan story ended was that Gucci decided to copy him. They developed a street design that was literally his copy of their Gucci product from 20/30 years earlier.
Now, in the U.S. there was absolutely nothing that Dapper Dan could do about this. Dapper Dan is not his real name by the way, although it should be. There was nothing he could do about it, because the design was so old by then. I do not know in the U.S. whether it necessarily had any protection at all. So Gucci could have got away with it, in a way that the other way round was not okay. Now, what happened in real life, was that social media was so outraged at his being copied by Gucci, that Gucci did quite a clever thing. It decided in response - and social media alone allowed this response to happen - Gucci actually hired Dapper Dan and he is now a consultant working/designing for Gucci.
And so, I suppose that his answer would be that copying has been very good news because he made a lot of money out of it when he was doing it illegally and now he is on Gucci's payroll.
John, do you have anything you want to say about using social media to deal with issues?
John A: Well, I mean there are other examples, obviously there is the Aldi example and Brewdog and their anti-establishment IPA. There is examples of Aldi and Fever-Tree which I was alluding to earlier. I think each of which uses social media in a slightly different way. The Fever-Tree example was very much around the taste and it enabled Fever-Tree to talk about the smaller bubbles and the differences between the two products and so forth.
But these are big companies who have deep pockets and we able to fight through social media on an even playing field. I think the danger with a smaller company taking on a larger imitator, is that you could so often get browned out and you have to be incredibly imaginative to be able to actually navigate through without having a whole load of legal letters flying through your letterbox about libellous claims and so forth and citing prior art and all the rest of it.
It is a lovely idea and if you can create that - establish that truth that your product was before the imitator and that you were the innovator not the larger imitator and you are brave, that is great.
John C: Yes. I mean I think, my view on this is that it has to be part of the strategy. You have got to have the rights to rely on at all and if you do not have the rights to rely on then you should expect to be copied. It is worth bearing in mind - and as I say, there are other events where we will be talking about this more specifically, that you have quite a few rights automatically - by designing in the U.K. by designing in Europe to some extent.
You have some protection automatically, whether you do anything about it or not but the most important thing there is that you can prove your rights and it is worth spending time, either with a lawyer or on your own working out exactly what your rights are and documenting them at the time rather than hoping to cobble it together later when you are copied.
The other thing is that, the legal approach is not the only approach - my bosses here will hate me saying. It has got to be part of the picture. I would like to think most lawyers worth their salt these days will give you a discussion of a whole strategy around using the legal side of things as well as the commercial approach.
We have had many clients who have taken an infringer and actually turned them into a customer and all sorts of other commercial outcomes can sometimes happen as a result of being copied. I suppose, to wrap this up, there are times when being copied - it is not what anybody would normally choose but it is something where it can be turned into a positive even if it principally a negative experience and the key is to think about how - when this happens and it is a when rather than an if - if you are successful you must expect that people are going to want to emulate your success by cutting a corner or three.
The key is, to make sure that you are ready for that and that you can make the most of any of those situations without it being an entirely negative experience and that is through a combination of planning your legal reaction through having some rights up your sleeve.
Planning how you will deal with it on a P.R. basis and using other methods as well, to make sure that when you get to that position you can make the best of it that you can.
I would just like to wrap this up now by thanking - I have a little slide to bring up - but just for further information we have mentioned the other webinars a few times, I thought I would throw that slide up which gives you the dates of the future seminars.
I would like to thank my panellists for joining us today. It is very generous of you all to give your time and to give your different and not always entirely agreeing views on this interesting topic and I hope that the - well we had a lot of people join us - so thank you all to all of you for joining us when I appreciate time is tight in this pandemic with a lot of demands on your time.
So thank you very much to all of you for joining and hopefully you will join us again next year and fingers crossed it can be in person so that we are allowed to give you a glass of wine to say thank you for coming.
Thank you all to all my fellow panellist and to you for listening and have a good day.
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