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Wednesday, 26 January 2005

COURT KICKS OUT BOOT LOGO APPEAL



Yesterday the Court of Appeal for England and Wales dismissed an appeal in R Griggs Group v Evans, Raben, Lewy and Lewy (the Doc Martens case) [2005] EWCA Civ 11. I

In short, Griggs was a group of companies one of which made ‘Doc Martens’ footwear. That footwear was sold under two trade marks, one of which belonged to Griggs, the other being licensed from an unrelated German company. In 1988 Griggs decided to combine the two marks to form a combined logo and commissioned an advertising agency to produce it for them. The drawing was done by Evans who, at that time, was working for the advertising agency as a freelance at a flat rate of £15 per hour. Evans was instructed to design "visuals for [the claimant’s] UK point of sale material"; the invoice referred to "… UK point of sale material designs including: client briefing, headline writing, logo ‘combination’ designs, highly finished visuals for client presentation".

A dispute arose between Griggs and Raben, an Australian footwear company with a number of retail outlets in Australia. The two Lewys were directors of Raben, which argued that Evans was the first owner of the copyright in the combined logo and that it had acquired that copyright by virtue of an assignment from Evans. Evans said he was employed merely to create some point of sale material for Griggs and that, had he known he was being instructed to produce a logo for all kinds of use all over the world, he would have charged more than his standard rate. He argued that Griggs was entitled to a licence to reproduce the logo for point of sale material in the United Kingdom and that, for all other purposes, the copyright belonged to Evans who could do with it whatever he wanted.

The deputy judge (Peter Prescott QC) ruled that the invoice was just an identification of the work Evans was asked to do and was not a document about copyright. Holding that Griggs was the equitable owner of all aspects of the copyright, he granted a declaration to that effect. The defendants appealed.

The Court of Appeal, led by IP specialist judge Lord Justice Jacob, emphatically dismissed the appeal. In the Court's opinion

* The implication of a term into a commissioning contract to the effect that copyright would invariably belong to the client in all cases where the client needed the right to exclude the contractor from using the work depends on all the factual circumstances.

* In this case, if an officious bystander had asked at the time of contract whether Evans was going to retain rights in the combined logo which could be used against Griggs, or against anyone to whom he sold the rights, anywhere in the world, other than in respect of point of sale material in the UK, the answer would surely have been "of course not". Evans had no conceivable further interest in the work being created.

* The deputy judge’s conclusion of fact was conclusive. He found that the reference to "UK point of sale" material was only for identification of the work to be done, it was not there to describe or limit the rights in the work. Further, the finding that Evans was paid the proper rate for the work disposed of any possible argument based on the notion that he needed to retain the copyright so that he could call for payment for such further use.


So much fuss about a teensy weensy logo ...

The IPKat is delighted with this ruling. He thought the appeal was a total waste of time and never stood a mouse's chance in cats' heaven of succeeding. The only issue which this appeal leaves unresolved is that of why the Court of Appeal was so polite in dismissing it.

Related proceedings on whether a British court can order the assignment of a foreign copyright interest here
Puss in Boots here and here

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