Our company sells plaid pattern girls and ladies skirts in Canada.
Another Canadian company that sells plaid pattern girls and ladies
skirts in Canada has adopted the practice of getting Copyrights issued
by the Canadian Intellectual Property Office for the plaids that they
sell.

Question: Can Canadian Copyrights be used effectively to prevent
others from marketing and selling plaid designs described in the
Copyright?

tartans-ga,

Thanks for your question.  Let me preface my answer by saying, first
off, that copyright questions are always quite complex, and quite
specific.  Without having the precise details of what you and your
competitor have created, I can only answer your question in broad
terms.

Furthermore, please note the disclaimer at the bottom of this page --
Google Answers is not substitute for professional legal advice, so
take everything here with the appropriate grains of salt.



Having said that, certain things about Canadian copyright law are very clear:


--A creative work DOES NOT have to be registered with the government
in order to be protected by copyright.  As soon as you (or any other
company or person) creates an original work, that work is
automatically copyrighted.  For instance, both the question you wrote,
and the answer I have written, are both copyrighted works, even though
neither of us, presumably, has registered this material with a
copyright office.

In other words, your plaid creations -- assuming they are very similar
to your competitors -- are likely to have the same level of copyright
protection.


--The advantage to registering a copyright is that it establishes an
unambiguous date when the work was in creation.  In the event of a
legal dispute over who created a work first, the date of registration
carries a lot of legal weight.

--You asked, specifically, whether "Canadian Copyrights be used
effectively to prevent others from marketing and selling plaid designs
described in the Copyright?"

Bear in mind, again, that your plaid designs have pretty much the same
level of copyright as the other guys, so this becomes a two-way
question, at the very least.

IF the designs are original works, then they are indeed copyrighted. 
Although there's no way to prevent someone from selling a copy of that
same design, once they do so, they can be sued for copyright
infringement.  It would then be up to a court to determine if (a) the
works were of enough originality to warrant copyright, and (b) whether
infringement actually occurred.


If the designs are not original -- if someone, say, uses a plaid
pattern that has been around for centuries -- then the design of that
particular plaid is not likely to be afforded copyright protection.


Like I said, these matters are always complex, and always comes down
to the specifics of each individual situation.


The Canadian Intellectual Property Office has some very nice,
plain-English explanations of copyright.  I'd suggest looking them
over, starting with:



http://strategis.ic.gc.ca/sc_mrksv/cipo/cp/copy_gd_protect-e.html
A Guide to Copyrights: Copyright Protection

--What is a copyright?

--What is covered by copyright?

--Copyrights vs trade-marks, patents, industrial designs and
integrated circuit topographies
[This last one is worth a look -- 'industrial designs' are similar, in
some respects to copyrights, but -- unlike copyrights -- can be
obtained only by registering]





http://strategis.ic.gc.ca/sc_mrksv/cipo/cp/copy_gd_regis-e.html#1
A Guide to Copyrights: Registration of Copyright
--The benefits




I trust this information fully answers your question.

However, please don't rate this answer until you have everything you
need.  If there's anything more I can do for you, just post a Request
for Clarification, and I'm happy to assist you further.

pafalafa-ga


search strategy -- Google search on [ canada copyright ]

---

Request for Answer Clarification by tartans-ga on 17 Mar 2006 07:13 PST

Hi and thanks for the well written reply. The risk our company faces
is being sued for copyright infringement. It seems we could try to
either attack the validity of the competitor's copyright (there are
many thousands of tartan patterns in use around the world - we can
probably find examples similar to the patterns sold by our
competitor), or defend on the basis that our designs while similar to
our competitor's product, are not identical (differences in line
spacing and width, differences in colours eg: there are many shades of
grey!!). In your experience, which of the two choices usually bears
more fruit?

Thanks.

---

Clarification of Answer by pafalafa-ga on 17 Mar 2006 08:31 PST

tartans-ga,

Thanks for the note.  There's no way I know of for a company to
'bullet-proof' themselves against a copyright complaint.  If a
competitor is feeling infringed-upon, and you're in their line of
sight, then you may wind up with a letter from their lawyers.

The best defense is probably some combination of 'all of the above'. 
There's no need to rely on a single argument...use everything you've
got, including:

--We were here first!  Can you document that your use of a particular
pattern predates your competitor?  If so, you can make the case that
they are infringing on you.

--They're not the same!  Document the differences between patterns.

--They're not even copyright-protected.  Make the case that these are
historical patterns, long in use, and basically in the public domain.

Remember, any of your original patterns are copyrighted, even if you
haven't registered them.  You can even consider firing a (hopefully)
prememptive first shot...sending a cease and desist type letter to
your competitor.  I'm not recommending this, mind you...just
mentioning it as something to consider.

As I said in my original answer, there's really no way to know the
outcome of a given dispute unless and until the courts get involved
and make a determination.  Hopefully, though, you and your competitors
needn't get to that point.


Good luck, and let me know if there's anything more you'd like on this.

pafalafa-ga