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Monday, 11 July 2011

Law suit over replica Batmobile

Over in the US, the maker of a Batmobile replica is facing threats of legal action from DC Comics. It's reported by the American Univeristy's Intellectual Property Brief blog, which wonders whether the publisher actually owns the rights in the design anyway, and comments on a few earlier replica cases. We've had similar issues in the English courts, though not for a while: and none of them ever made the law reports, as far as I know. I remember years ago Rolls-Royce Motor Cars Ltd used to get very excited about one John Dodd, who operated a spare parts delivery service using a vehicle known as The Beast which was connected with Rolls-Royce in that it was powered by a 27 litre Merlin engine. That Rolls-Royce's then company secretary was also called John Dodd was the source of some wry amusement. It didn't look anything like a Rolls-Royce, except for the grille, so they sued him. He drove it to court every day (it overheated and broke down in the London traffic), and I remember him turning up one day on horseback.

I also remember Ferrari threatening action over 250GTO replicas, which reproduced much more than just the grille: and the Caterham-Westfield dispute - as well as a meeting at the old Patent Office building, to which I took a delegation of SMMT members keen to obtain proper protection from replicas. The 250GTO was an interesting one, because although no-one was quite sure how many had been built it was definitely fewer than 50, so if the design were a copyright work (and it might well have come into the curious and somewhat inchoate category of works of artistic craftsmanship, having been formed out of sheet metal by Mr Scagliatti and a hammer) it would not be deprived of full copyright protection by reason of having been applied industrially. Unfortunately we never got beyond the stage of a conference with counsel ...

In many countries, making replica cars would probably be considered a form of unfair competition. We have no unfair competition law in this country, and there is little general enthusiasm for one, although it was one of the items on the agenda for that meeting at the Patent Office 25 years or so ago. The Paris Convention calls for such a law, and the UK signed it back in 1883 - the year in which Karl Marx and Richard Wagner both died, which sticks in my mind because it was also the year in which my old school was founded. I think it's important to keep unfair competition on the agenda, perhaps to try to develop passing-off law into an approximation of what we are supposed to have.

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