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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 secrets.

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 infringement.

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

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