Meeting Rita Britton, a Living Legend

Jane Lambert

For the last 20 years, I have offered a free advice service on intellectual property and technology law to tenants of the Barnsley Business Village and other local businesses known as "Initial Advice and Signposting".  One of those tenants is Clea Digital which hosts a monthly event at the Business Village called the Creative Collective.  I attended that event yesterday because the guest speaker was Rita Britton.

Ms Britton is a living legend because she set up and ran a remarkable business called "Pollyanna."  This was a shop in Barnsley town centre that sold clothes and accessories from the world's top designers.  Though I am not sure whether I ever bought anything other than refreshments in the shop's cafe, I made a point of visiting it to admire the merchandise whenever I was in Barnsley.  If I met a visitor from another part of the UK or from overseas I would send them to the shop.  Ms Britton closed Pollyanna in 2014 after suffering a stroke and brain haemorrhage (see Rita Britton closes Pollyanna boutique in Barnsley after 50 years 16 June 2014 BBC website),  

Closing that shop was not the end of Ms Britton's story because she is still in business.  She recently incorporated a company called Pollyanna Barnsley Limited to make and sell clothing and accessories. That company is one of the tenants of the Business Village.  Yesterday's Creative Collective meeting was attended largely by Ms Britton's fellow business owners and tenants.  Most of the audience were women but I counted several men including Mr Kevin Steel, the Business Development Manager of the Business Village.

Ms Britton spoke animatedly and energetically without notes about her life and work  She mentioned her parents, upbringing and education.  She left school at 15 and found a job in a paper mill.  She passed her driving test soon after her 17th birthday which was apparently unusual for girls of her age in her neighbourhood  Her employer made use of that skill by asking her to transport workers to its premises in the South of England whenever some extra help was needed. She rose quickly through the company which provided an opportunity for her to learn a lot of useful management skills.

She opened her business with help from her father,  One of her first suppliers was Mary Quant and she also mentioned Barbara Hulanicki.  She spoke nostalgically about the 1960s and all the changes that it brought socially and culturally. Before the 1960s girls would dress like their mothers. The miniskirt allowed them to look and behave very differently.  I remember that period well though I am a few years younger than Ms Britton and grew up in suburban Surrey.  The social and cultural changes that she mentioned coincided with the change of government which led to the abolition of capital punishment and decriminalization of homosexuality.  There was also England's victory in the World Cup, protests against the Vietnam War, the first stirrings of women's liberation, the availability of oral contraceptives, student riots in Nanterre and the idea of flower power which contributed to the mood of the times.

Ms Britton mentioned some of the great personalities of the fashion world with whom she had negotiated.  She compared a visit to Jean Muir to an audience with the late Queen.  Some of her suppliers were very snooty on learning that she came from Barnsley.  Others showed great courtesy.  She found the Japanese to be particularly accommodating.  She recalled an incident where a Japanese supplier dismissed a Scottish employee who had been particularly offensive to Ms Britton during difficult times.  Ms Britton described herself as placid by nature but she quickly learned how to deal with aggressive behaviour in others.

The last part of her talk covered plans for her business.  She had recently designed a new bag with the words 

LONDON
PARIS
NEW YORK
BARNSLEY

but was thinking of omitting the word London.  One member of the audience suggested striking out all the names except Barnsley.  She had met some pushback from customers in London, two of whom are members of my profession.    She also spoke of the opportunities that she wanted to create for young designers.   She passed around a catalogue of jewellery made from jet which she had introduced to Dover Street Market.  What was needed, in her view, was a centre of excellence for local designers.   After her talk, I mentioned that we had such a centre in Huddersfield.

Today is one of the days on which I visit the Business Village for my drop-in IP clinic.  I have not had any appointments for today so far. However. I have been the first port of call for many young designers from all parts of the country who have sought advice on trade marks for their branding, registration for their product designs and copyright and design right protection for their merchandise and promotional materials.

Anyone wishing to discuss this topic further can call me on 020 7404 5252 during office hours or send me a message through my contact form at other times.

Leeds Ice Cream Van Makers lose Design and Trade Mark Infringement Claim

In Whitby Specialist Vehicles Ltd v Yorkshire Specialist Vehicles Ltd and Others [2014] EWHC 4242 (Pat) (17 Dec 2014) a company in Leeds which converts commercial vehicles into ice cream vans and the individuals behind it were sued in the Patents Court by Whitby Specialist Vehicles Ltd for registered design, design right and trade mark infringement. I have discussed the case in detail in Designs in Ice Cream Vans: Whitby Specialist Vehicles Ltd v Yorkshire Specialist Vehicles Ltd and Others 27 Dec 2014 NIPC Law.

The case was unusual in that it proceeded in the Patents Court which is a specialist court within the High Court for the trial of patent, registered design, semiconductor topography and plant breeders' right claims worth over £500,000. The case against the defendants was that they had bought one of the claimant's vans and used it as a template for making parts that they used to convert other vans. While any copying is serious it is unlikely that the damages or accountable profits will come close to the £500,000 figure. The usual forum for disputes of this kind is the Intellectual Property Enterprise Court ("IPEC") which I mentioned in Holding your Own - How to stop others from ripping you off if you are a Private Inventor 5 April 2014. There trials are completed in one or at most two days and the costs of  trial on liability are limited to £50,000. The costs in the Patents Court will be much higher.  Why the case was not transferred to IPEC is curious and that may be because nobody asked for such a transfer. That could be because the brothers and their company were unrepresented and the father, who was represented by Leeds solicitors and Manchester counsel, contested only his personal involvement in the infringement.

This case is worth reading for Mr Justice Arnold's analysis of the law relating to registered designs and unregistered design right infringement and the meticulous way in which he dissected the factual evidence against the father.  It is likely to be referred to in future cases on registered design and design right infringement. Finally, the claimant company has nothing to do with the seaside town. It is actually based in Crewe. It takes its name from its founder whose surname was Whitby.  If anyone wants to discuss this case or registered design and unregistered design right law with me after the Christmas holidays, call me on  01484 599090 or use my contact form.

Well at least a Yorkshireman invented Cats' Eyes

Source Wikipedia

The former Manchester Guardian listed Percy Wood of Halifax as one of the top 50 Yorkshire folk of all time. He invented the reflective road market known as cats' eyes in 1933. Apparently, he got the idea after seeing a real cat's eyes while negotiating the still hazardous road from Clayton Heights to Halifax. Reflectors based on Shaw's invention are found all over the world.

However, there have not been so many inventions from our county recently. According to the Intellectual Property Office's Facts and Figures for 2012 and 2013, some 984 British patent applications were filed from Yorkshire and the Humber in 2013 compared to 1,025 in 2012.  In the same year there were 2,822 applications from South East England, 2,588 from London, 1,802 from the East of England, 1,368 from the South West, 1,259 from the North West and 1,180 from the West Midlands. However, Yorkshire was ahead of Scotland (900), the East Midlands (742), Wales (539), North East England (314) and Northern Ireland (237). Yorkshire was also 7th in the number of grants: 171 compared to 437 from South East England, 346 from London, 340 from South West England, 337 from Eastern England, 204 from North West England and 192 from the West Midlands.

There were 2,744 trade mark applications from Yorkshire in 2013 compared to 12,699 from London, 6.197 from South East England, 4,222 from North West England, 3,407 from South West England, 3,227 from the East of England and 2,885 from the West Midlands. With 2,305 registrations in 2013, Yorkshire trails London (10,583), South East England (5,258), North West (3,521), South West (2,951), Eastern England (2,651) and the West Midlands (2,329).

With 78 registered design applications and 59 registrations in 2013 Yorkshire was last but one from the bottom. Only Northern Ireland had fewer applications (19) and registrations (16).  The top three regions for designs were London (1,153 applications and 720 registrations), South East England (1,066 applications and 883 registrations) the North East (548 applications and 484 registrations). North West England had 471 applications and 397 registrations.

We can assist artists, designers, inventors, entrepreneurs and investors in Yorkshire and the Humber with our IP clinics at Barnsley BIC, talks and publications all of which are free of charge. For our chargeable services see "IP Services from Barristers" 6 Apr 2013 4-5 IP. If anyone wants to discuss his article or any patent, trade mark, design or other intellectual property matter he or she should call us on 01484 599090 or get in touch through my contact form. You can also tweet me, write on my wall or send me a message through G+, Linkedin or Xing.

Design Right and Registered Designs: Utopia Tableware v BBP Marketing

This was a claim for registered design and unregistered design right infringement in the new Intellectual Property Enterprise Court ("IPEC"). Both the claimant Utopia Tableware Ltd of Chesterfield and the first defendant BBP Marketing Ltd of Mirfield supplied glasses. At the start of the litigation Utopia applied for and won an interim injunction (see Utopia Tableware v BBP Marketing [2013] EWPCC 15 (21 Jan 2013)). However, the evidence on which it relied was found to have been concocted and Birss J referred the matter to the Attorney General under CPR 81.18 so that he could consider committal proceedings (see Utopia Tableware Ltd v BBP Marketing Ltd and Another [2013] EWPCC 28 (30 May 2013)). The action came on for trial before Mr Recorder Campbell on 24 Sept 2013 and he delivered judgment on 12 Nov 2013 (see Utopia Tableware Ltd v BBP Marketing Ltd and Another [2013] EWHC 3483 (IPEC) (12 Nov 2013)).

The Registered Design
Utopia had registered the following design with the Designs Registry under registration number 4021276 pursuant to the Registered Designs Act 1949:

The Design Right
The design document in which the design was recorded appears below.

Infringing Articles
The following photograph shows the glasses sold by each of the parties.  Utopia's appears to the left and BBP's to the right.

The Issues
The defendants admitted that they had copied the exterior dimensions of the claimant's design but not its interior measurements nor the wall thickness since their glasses were made out of polycarbonate rather than glass.  Having admitted copying of the exterior dimensions the defendants could hardly deny copying of the unregistered design or claim that their glass produced on an informed user a different overall impression from the registered design. Their defence was that the claimant's design was commonplace and lacked individual character.

Judgment
Mr Recorder Campbell found for Utopia on both points.

As for the "commonplace defence" the judge directed himself at paragraph [58] to identify the relevant design field for the purposes of the Act.  He decided at [69] that it was beer glasses.  Comparing

"The shape of the profile of the outer surfaces of the Claimant's Vessel, that profile in particular including, above a waisted section, an elongated tulip shaped section which tapers inwardly as it approaches the rim of the Claimant's Vessel,"

to similarly shaped glasses distributed by Amstel, Carlsberg and Peroni to promote their beers he concluded that that feature was not commonplace though other features were. As design right can subsist in any aspect of the design of part of an article the Recorder found that that was enough for design right to subsist.

Relying on Judge Birss QC's decision in Samsung Electronics (UK) Ltd v Apple Inc [2012] EWHC 1882 (Pat) (9 July 2012) which I discussed in  Apple v Samsung - compare and contrast 28 Aug 2012 NIPC law the Recorder identified the "informed user" as a beer drinker, held that the designer of a waisted glass had limited design freedom and compared Utopia's glass to the Amstel, Carlsberg and Peroni glasses. Having regard to those factors he concluded that the design did have individual character and was therefore valid.

He therefore held that both Utopia's design  right and the registered had been infringed.

Comment

Despite the submissions of Sir Robin Jacob, the leading scholars on intellectual property law, the Intellectual Property Bar Association and many others the government seems hell bent on its proposal to criminalize registered design right infringement. Had that proposal been law it is possible that the executives of two well established and highly regarded local companies would have been prosecuted, This question whether the registered design had individual character was difficult enough for an experienced intellectual property practitioner to resolve. It is hard to imagine lay justices and juries attempting a similar careful analysis. In a case such as this where the claimant's witnesses had acted particularly badly a conviction would have been intolerable.

If Yorkshire were a country ......

Yesterday's Independent carried an article about the success of sportsmen and women from Yorkshire in the London Olympics: "London 2012: Yorkshire - the county that's trouncing Australia in the Olympic medal table" Independent 7 Aug 2012. It continued

If Yorkshire were a country....
1. China: 31 Gold, 19 Silver, 14 Bronze = 64 medals
2. USA: 29 Gold, 15 Silver, 19 Bronze = 63 Medals
3. Great Britain (minus Yorkshire): 14 Gold, 10 Silver, 11 Bronze = 35 medals
4. South Korea: 11 Gold, 5 silver, 6 bronze = 22 medals
5. France: 8 Gold, 9 Silver, 9 Bronze = 26 medals
6. Russia: 7 Gold, 17 Silver, 18 Bronze = 42 medals
7. Italy: 7 Gold, 6 Silver, 4 Bronze = 17 medals
8. Kazakhstan: 6 Gold, 0 Silver, 1 Bronze = 7 medals
9. Germany: 5 Gold, 10 Silver, 7 Bronze = 22 medals
10. Yorkshire 5 Gold, 2 Silver, 1 Bronze = 8 medals
Meanwhile sporting powerhouses Australia, South Africa and Japan languish behind....
16. South Africa: 3 Gold, 1, Silver, 0 Bronze = 4 medals
18. Japan: 2 Gold, 12 Silver, 14 Bronze = 28 medals
19. Australia: 2 Gold, 12 Silver, 8 Bronze = 22 medals

Now that is all well and good but you can't eat gold medals. It is innovation that brings in the brass.  So how do we do in that league?   Not very well, I'm afraid.

According to the Intellectual Property Office's Facts and Figures: 2010 and 2011 Calendar Years Yorkshire lies fifth from bottom in the number of patents granted in 2011:

Region                                                     Number

South East England                                    591

East of England                                          409

London                                                      401

South West England                                   363

North West England                                   246

West Midlands                                           216

Scotland                                                    207

Yorkshire                                                  175

East Midlands                                             155

Wales                                                            82

North East England                                      70

Northern Ireland                                            16    

(page 1).

We do even worse in trade mark registrations:

London                                                     7,089

South East England                                    3,992

North West England                                  2,628

South West England                                   2,047

East of England                                          2,029

North East England                                    1,962

West Midlands                                           1,727

East Midlands                                             1,282

Scotland                                                     1,237

Wales                                                            621

Northern Ireland                                            201

Yorkshire                                                     186 

(page 16)

And we are bottom of the list in design registrations too:

London                                                        649

South East England                                       563

West Midlands                                             416

North West England                                     399

South West England                                      346

North East England                                       330

Scotland                                                        229

East of England                                              213

East Midlands                                                171

Wales                                                            116

Northern Ireland                                               29

Yorkshire                                                        25

(page 26).

Bearing in mind that we have great universities like Bradford - one of the first with a business school and arguably the first to offer a degree in computer science - the Advanced Manufacturing Research Centre in Rotherham, Digital Region in Sheffield, the Northern Technology Institute in Leeds, the Leeds College of Art and PatLib libraries in Leeds and Sheffield we really ought to do better. We can't afford to be complacent.