I work in a jewellers and also design my own stuff at home with my own materials,equipment and in my own time.This used to be ok.But I am now getting bad vibes from the management and I have heard they want to claim rights to my jewellery.
This is not an intelectual property (IP) question, although it is a confusing area. IP is an intangible business asset. Ordinarily Intellectual property is a negative right in that it gives the owner a right to prohibit others from copying without permission what has been created. It does not generate any income unless it is exploited, for example, by incorporation in a product or service which is sold.
This is partly a copyright question and party competition law. It also raises questions relating to restrictive covenants.
In L. Woolley Jewellers Ltd -v- A & A Jewellery (London) Ltd : [2002] EWCA CA Civ 1119 the Court of Appeal considered the trial judge’s approach to infringement of design right and concluded that in applying the test for infringement of copyright the judge had been wrong. The tests for infringement of the two rights were different.
The parties were both jewellery manufacturers. The piece of jewellery in question was a pendant which made use of obsolete and imitation coins called inserts which were kept in place by lugs within the mount. The lugs could also be formed within a bezel, a ring with lugs placed over the circumference of the insert. The claimant's design drawing was of a pendant without an insert and was a combination of the features – the bail (a piece of metal attached to the pendant through which a chain was threaded), the bezel, the mounting and the decorative edging. The area around the insert had an outline of three heart shapes into which a bail had been inserted. The centre of the bail was also cut out in a heart shape.
The judge had held that the parts protected by design right were the decorative edge, consisting of the three heart motif, and the bail which took the chain. There was no appeal against this finding. The bail was held to be the designer’s own design and the combination of the bail and heart motif was original, not commonplace and thus entitled to design right.
The bail but not the heart motif had been copied. The question at issue was therefore whether the copying of just the bail amounted to copying of the design. The judge applied the approach of copyright law – copying of a "substantial part". He considered whether the bail could be said to be a substantial part of the design and decided it was and so as it had been copied there was infringement.
The defendant appealed against that approach. The Court of Appeal referred to the judgment of Aldous J in the well known first reported design right case – C & H Engineering -v- Klucznik & Sons Ltd [1992] FSR 421 – where he said that under Section 226 Copyright, Designs and Patents Act 1988, there will only be infringement if the deisgn is copied "so as to produce articles exactly or substantially to the design". The alleged infringing article must be compared with the document or article embodying the design.
The Court of Appeal held that "there is a difference between an enquiry into whether the item copied forms a substantial part of the copyright work and an enquiry whether the whole design containing the element which has been copied is substantially the same design as that which enjoys design right protection." They added that it might not be enough to have copied a part, even a substantial part and that regard had to be had to the overall design (the recent Da Vinci Code copyright case took this even further). The judge had not done so.
The Court of Appeal remitted the case back to the judge for further consideration on this point.
So unless your jewelly is substantially similar to any your employer sells, you are fine. It is unlikely that you would breach any competition laws as technically you are employed by the competition. However, I would be concerned that you may be breaching a restrictive covenant in your employment contract (if there is one). Other than that you are probably okay unless you decide to open a shop in direct competition. Then it could get complicated.
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