I just read a great story on GreetingsMagazine.com about a company named Lucky Break that has won a design infringement suit against Sears and their ad agency. (It is a huge URL so you will need to search for it on the site). The story does not give all the legal details but it is important to note that one of the findings, in addition to the design copying, was that Sears et al violated the Lucky Break copyright warning statement.
Have one of those on your materials? You should.
It also brings to mind one of our more unfortunate experiences with a disputed design and copyright registration. A few years back we licensed a large collection of 3D products that had a variety of designs and dozens of skus that ran (with refreshes) for several years. We were a bit surprised when we got a call last summer from a family member who had seen our garden gnome and angels at… an HBBCS (Humungo Big Box Craft Store that does not start with “M”).
Cool, we thought – until we discovered that our manufacturer never sold them to HBBCS, but apparently their factory had. Welcome to the world of overseas sourcing.
We have been down this road before, too many times, so I sent all the appropriate catalog pages, product pictures and supporting material showing our designs pre-dating theirs off to the appropriate person at HBBCS, who immediately turned it over to their head legal counsel, who immediately contacted me with only one question – did we have the copyright registration certificate? Which unfortunately we did not, we had let some of these designs go unregistered. I still believe I could hear him chuckle, and of course they immediately concluded there was no similarity and ended our correspondence. All we could do was let it go because the costs of pursuing it would far outweigh any recovery of royalties, and the HBBCS legal staff were of course fully aware that, without our Federal registration, they were not on the hook for damages and could ignore us.