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Alternative Action

Many small product designers and manufacturers think that dealing with intellectual property issues is just too financially prohibitive and ACID is often asked “what are the alternatives”? Often too, taking action can be an expensive process that can outweigh what you would get in return. To avoid the costs, the small claims procedure may provide a much simpler solution. Dids Macdonald, ACID’s CEO looks at a recent case study involving ACID member Sarah Borg and Moussie Sayers of Nordic Style

This case study, and recent successful action taken by ACID member Sarah Borg against Moussie Sayers of Nordic Style, proves that it is possible to pursue an infringement. Although this took amazing courage and persistence by Sarah, she eventually saw what she considered to be fair play by being awarded a Judgement in the Small Claims Court.
The commercial relationship between the two started well in 2001 but along the way went extremely wrong when, after repeated attempts Sarah could not get Moussie Sayers to pay for designs that she had created for Nordic Style and for which she owned the copyright. As a result, she decided to approach ACID and told them that it would be impossible to instruct lawyers because she simply could not afford to do so. Initially, Dids Macdonald, ACID’s CEO wrote to Moussie Sayers in January 2005 asking for her comments on the matter in the hope that a letter from an organisation to which Sarah Borg belonged might elicit a response so that an amicable settlement could be reached. Despite three letters there was no response from Moussie Sayers.
In the meantime, Moussie Sayers and Nordic Style had launched a silk taffeta collection that featured a Sarah Borg floral sprigs design which was one of the designs that Moussie had not paid for. Sarah at this point was exasperated, having first tried a conciliatory route, Dids then suggested that as the sum of £2450 (plus interest) was below the Smalls Claims Court threshold of £5000, her most cost-effective route may be to file an application to the Small Claims Court. Sarah Borg filed a Claim in August 2004 but the Claim was returned undelivered. However, in September Moussie Sayers acknowledged the claim and informed Sarah Borg that she was going to defend it. Fortunately, ACID was able to supply the Court all the recorded delivery correspondence that had ensued and a diary of events from when they were first informed of the situation in January 2004.
The Court awarded the following based on Sarah Borg’s ownership of the copyright on two designs and costs totalling £1876.60. Moussie Sayers of Nordic Style was given 28 days to pay.
Following the settlement Sarah Borg commented, "I felt there was a principle at stake. No one likes to be taken advantage of and this was clearly IP infringement. I'm delighted the Court upheld copyright and Nordic Style was made to pay. Behaviour such as this brings the whole industry down, so for all who play by the rules it was definitely worthwhile pursuing."

How does the Small Claims Court work?
1 The person claiming must complete a standard form which sets out details regarding the claim and list the parties involved so ask your local County Court for a document known as a "Claims Form", you will need to complete this with details of what you are claiming and against whom.
2. If you decide to make a claim you will be called the "Claimant" and your opponent will be called the "Defendant".
3. You will also have to pay a court fee; this will depend upon how much you are claiming. You can claim this fee back from your opponent, if you win your case. (This is known as Fixed Costs).
4. Your completed form should be returned to the County Court office with the relevant fee.
5 The Court then sends a summons to the Defendant. At this point the Defendant may decide to pay but they also have the option to admit a part of the claim, pay it and make a request to pay by instalments. The other option is that they may decided to defend the claim in full.
6 If this is the case or any part of the claim is disputed, the claim will be heard in a Small Claims Court. It is informal and often around a table in a Judge’s chambers
7 You can use a solicitor, or someone else , but you can't claim costs back for using that solicitor, except the standard fees which are prescribed by the Court. The court fee is separate though you must present your own “case”. i.e. The Judge will only address you, not a solicitor. Equally, you are the only person who may address the Judge, not a solicitor.
8 Chambers, whilst informal, can sometimes be intimidating and claimants can find themselves out of their depth because they are unfamiliar with these surroundings.
9. As a result, Judges will be aware that most claimants have not been in this position before and will be unaware of Court procedures, therefore, they will do everything to help and assist claimants.
10 Judges, whilst doing everything in their power to assist in a small claims matter will not tolerate unreasonable prepresentations or verbal abuse.
Enforcing a court ruling
If a court has decided that someone must pay you an amount of money and you haven’t received it, you can ask the court to enforce the ruling.
Usesful websites
www.hmcourts-service.gov.uk
www.compactlaw.co.uk/tiscali/smc.html
www.moneyclaim.gov.uk

Further Information
For more details email: help@acid.uk.com or visit the website www.acid.uk.com

September/October 2010
issue 61
available now