Colours, Catwalk and Court
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Intellectual property simply means specific legal rights which authors,
inventors and other rights holders may own and exercise, and not the
intellectual work itself.
Intellectual property laws are designed to protect different forms of subject
matter e. g. copyright, patents, trademarks, industrial design rights and trade
So where does the catwalk come in? In August 2000 the Earls court fashion
trade exhibition show was held in London and Lambretta's track-top designs were
first shown there. Mr. Harmer's contribution to this design was the choice of
colours (particularly blue for the body, red for the arms and white for the
zip), the white stripes, and the size and positioning of the "Lambretta" logo –
small on the front and large on the back. The shape of the garment itself was
old and indeed Mr. Harmer had an all-white sample supplied by the manufacturers
when he did his work. It was reported that sales were very successful. Between
2000 and 2002 Lambretta had sold track-suits worth 20,000.
However, two years after the track-top was lunched Lambretta sued UK company
Teddy Smith and Next for selling similar track tops, claiming infringement of
its unregistered design rights (UDR). The High Court dismissed Lambretta's
claims, ruling that UDR could not subsist in a variety of colour and that the UK
Copyright, Designs and Patents Act 1998 provided a defence to artistic copyright
So are colourways mere surface decorations or are they part and parcel of an
original design? Does the (Copyright Designs and Patent Act 1988) S .51 provide
a defence in respect of artistic copyright?
It was held that colour ways are part of the configuration, meaning that
three green stripes on the arm of a track-top is part of the configuration.
According to S. 213 surface decoration can have no design right. However, it is
excluded by S.51 (1) this means that Copyright in a drawing showing an article
with surface decoration may still be infringed.
If colourways can be infringed it gives the designer a greater area of rights
that need. In 2004 Lambretta appealed against the decision (Lambretta v Teddy
Smith 2004). At the appeal the issue raised was whether there was a difference
between configuration, shape and colourways. Lambretta's designs were the two
white stripes at the arms of the track-top and the size, colour and positioning
of the Lambretta logo on the back. The Court of Appeal dismissed Lambretta's
appeal, deciding that product colours could not be protected under national
design and artistic copyright laws. Design owners in the UK may pursue Community
rather than national protection.
About the Author
Lawdit Solicitors offer services and
advice for litigation, commercial contracts, Intellectual Property and IT legal
agreements. We are experts in commercial law with a heavy emphasis on
Intellectual Property, Internet and e-commerce law. Lawdit is a member of the
International Trademark Association, the Solicitors' Association of Higher Court
Advocates and we are the appointed Solicitors to the largest webdesign
association in the world, the United Kingdom Website Designers Association.
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Article Published/Sorted/Amended on Scopulus 2007-05-18 18:26:30 in Legal Articles