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Criminal courts as a forum for design infringement

Parliamentary copyright images are reproduced with the permission of Parliament

Parliamentary copyright images are reproduced with the permission of Parliament

We’ve written quite a bit about Clause 13 of the Intellectual Property Bill on IPcopy but with the IP Bill now on the verge of its second reading in the Commons the time left to change the Bill is running out. The specific clauses and their wording will be discussed in the Committee stage of the Bill which may occur before Christmas.

It would be my preference for Clause 13 to be deleted in its entirety from the Bill for a number of reasons, one of which is discussed in more detail below. The intention behind the clause is to provide stronger rights for designers which is, of course, a laudable aim. However, I question whether this clause is the correct vehicle for those improved rights. Alternatives such as extending the small claims track of the Intellectual Property Enterprise Court to hear registered design cases would also enable registered design rights holders to bring cases more cost effectively. ACID themselves appear to have had great success with mediation which is a process that could be formalised and expanded in my view to provide another option to rights holders.

However, instead we have Clause 13 which will make it a criminal offence to copy a design. In this article we’ll look a little more at the forum that such cases will be heard in.

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The IP Bill and the “Chilling effect” of Clause 13 revisited

Parliamentary copyright images are reproduced with the permission of Parliament

Parliamentary copyright images are reproduced with the permission of Parliament

In our previous series of articles on the IP Bill we looked at Clause 13 which seeks to introduce criminal provisions in respect of registered design infringement. This section of the Bill attracted a fair amount of discussion since it was felt in some (many?) quarters that  the threat of criminal proceedings could be asserted via Clause 13 against designers which would have a “chilling effect” on the UK design industry.

As noted here, the IP Bill has now left the Lords on its way to the Commons and Clause 13 has been the subject of a massive amount of debate in the Lords and has been amended slightly during its passage through that House. So, what’s changed and why?

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The Intellectual Property Bill – Criminal Provisions for Registered Design Infringement

Parliamentary copyright images are reproduced with the permission of Parliament

Parliamentary copyright images are reproduced with the permission of Parliament

In an earlier post we looked at the patent related provisions in the Intellectual Property Bill. Today, it is the turn of the registered design related provisions, or more accurately, one specific part of the registered design related provisions: Clause 13 – “Offence of unauthorised copying etc. of design in course of business”.

Clause 13 introduces a criminal offence with respect to registered design infringement which is punishable by imprisonment of a term “not exceeding ten years” and an unlimited fine. As we see below this provision has generated some opposing views.

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