Tuesday, June 03, 2008

New Legislation could help intellectual property owners to enforce their rights.

The Consumer Protection from Unfair Trading Regulations (CPUTR) and The Business Protection from Misleading Marketing Regulations came into force on the 26 May 2008 with the aim of protecting consumers and suppliers from unfair commercial practices.

One of the most interesting prohibited activities provided in the legislation is "Faking Goods" ie "Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not" (Schedule 1, para 13 CPUTR). This activity is considered 'unfair' in all circumstances.

This could be equated to a 'passing off action' for similar get up or a design right infringement action. However, the main difference is that the rights owner cannot enforce this legislation themselves. The Office of Fair Trading has been given the power to enforce this legislation so all a rights holder can do is to report an offender to the OFT.

There will also need to be some case law to interpret what is meant by 'deliberatly mislead' as this is not included in the definitions contained within the legislation. I suspect that this will, in practice, be difficult to prove.

The sanctions for breach of these laws includes a maximum of 2 years imprisonment and a £5,000 fine so are not to be taken lightly.

Obviously having the OFT taking action against a third party infringer is cheaper than enforcing the rights yourself. However, the OFT's ability to investigate and enforce is limited to the resources they have available and so any action could be too late to prevent irreparable damage to your products or goodwill.

However, this is an extra weapon to be used in the war on piracy and counterfeiting and is probably something that should be considered in conjunction with civil action.

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