| 'Innocent infringement' and the Community unregistered design right: the position in the UK and Ireland (2008) | |||||||||||||
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| Legal context and Key Points This article systematically examines ‘innocent infringement’—highlights its non-uniform nature and summarizes defence it offers as to liability and/or remedies across a range of national UK and Irish IP rights—particularly copyright and design. It considers ‘innocent infringement’ in context of community unregistered design right (directly applicable in all EC member states under EC Reg 6/2002) and assesses if it affords defence to liability or financial remedies—suggests answer depends on meaning and effect of Article 19 (2), Article 89 (Reg 6/2002) and consideration of; the harmonizing effect of the Enforcement Directive (2004/48/EC); the ensuing respective UK and Irish IP Enforcement Regulations 2006; the UK's Community Design Regulations.2005. It concludes: limited scope of Reg 6/2002 indicates ‘innocent infringement’ affords neither defence to liability nor a limited defence to damages, but contrasts the role of discretionary remedy of account of profits, and nevertheless predicts UK and Irish Design Courts may seek to justify ‘innocent infringement’ offers limited defence to damages. Practical significance Given that the community unregistered design right, applicable EC wide, is useful and of interest in many commercial fields (eg fashion, furnishings, etc.), which require short-term protection against copying by over enthusiastic competitors, understanding the status and effect of ‘innocent infringement’ on liability and financial remedies is important. | |||||||||||||
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