Crying wolf: Is access to IP justice open to all?
A football fan's claim to have designed the Wolverhampton Wanderers FC logo (fondly known as Wolves) as a schoolboy in the 1960s, was recently dismissed by the High Court.
The case, which began in February 2018 when the fan in question, 71 year-old Peter Davies, brought proceedings against Wolves alleging copyright infringement, attracted significant attention from the UK national and sporting media.
Mr Davies claimed that he had submitted a stylised wolf's head design to an art competition in the early 1960s, and that since his design was so strikingly similar to the logo Wolves has used on its badge since 1979, it must have been copied.
Mr Davies explanation for taking nearly 40 years to bring the action was that he had only recently come across samples of his drawings.
Unfortunately for Mr Davies, this time lapse, some critical holes in his evidence and his failure to prove the design had been copied, weighed too heavily against him.
Similarity does not equal copyright infringement
The judge believed the Wolves' designer's argument that he had never seen Mr Davies' artwork before and that the similarity between the designs was a coincidence.
The harsh lesson for Mr Davies, a retired building industry manager with no previous experience of intellectual property (IP) law, is that similarity on its own is not enough for a finding of copyright infringement.
The focus of this case has now moved to the rules on paying costs in the High Court.
Mr Davies, a pensioner, who pursued the claim on a no-win, no-fee basis, has been left saddled with a bill estimated to be in the hundreds of thousands of pounds to cover Wolves' legal fees.
This creates a difficult situation for Wolves, who face a choice of appearing heartless if they force Mr Davies to pay up, or footing the cost of a case which, according to the judge, was groundless.
Individuals like Mr Davies rarely come before the High Court, because if they lose they are left having to pay significant costs.
This raises questions about access to IP law for ordinary people.
Are valid cases not being pursued because of the costs deterrent?
The punitive "fee shifting" cost regime in the English courts acts as a significant deterrent, as the loser usually has to pay their own legal fees and a substantial amount of the winner's.
This could be a significant – often a six-figure – sum, so for most parties, it is not worth taking the risk, particularly if you are an "ordinary" individual.
The English High Court is really only accessible to wealthy corporates or rich individuals who can afford the downside of losing.
Is there anything individuals can do to insure against the cost risks?
Insurance is available usually for defendants who are sued and have to defend a case brought against them.
After The Event (ATE) insurance is also available for claimants, but premiums are high and the insurance company is likely to take a significant chunk of any damages.
Is the system "fair" for all those who have IP to protect?
The UK has perhaps the most punitive costs regime in the world, which blocks access to the courts for all except the very wealthy.
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John Linneker is an intellectual property partner at Fieldfisher. For more information about the firm's IP and related expertise, please visit the relevant pages on the Fieldfisher website. For more information about litigation funding and insurance, please visit the FeeSolve pages of the Fieldfisher website.