| Abstract: | Legal context and Key Points: This article systematically examines innocent infringement—highlightsits non-uniform nature and summarizes defence it offers as toliability and/or remedies across a range of national UK andIrish IP rights—particularly copyright and design. It considers innocent infringement in contextof community unregistered design right (directly applicablein all EC member states under EC Reg 6/2002) and assesses ifit affords defence to liability or financial remedies—suggestsanswer depends on meaning and effect of Article 19 (2), Article89 (Reg 6/2002) and consideration of; the harmonizing effectof the Enforcement Directive (2004/48/EC); the ensuing respectiveUK and Irish IP Enforcement Regulations 2006; the UK's CommunityDesign Regulations.2005. It concludes: limited scope of Reg 6/2002 indicates innocentinfringement affords neither defence to liability nora limited defence to damages, but contrasts the role of discretionaryremedy of account of profits, and nevertheless predicts UK andIrish Design Courts may seek to justify innocent infringementoffers limited defence to damages. Practical significance: Given that the community unregistered design right, applicableEC wide, is useful and of interest in many commercial fields(eg fashion, furnishings, etc.), which require short-term protectionagainst copying by over enthusiastic competitors, understandingthe status and effect of innocent infringementon liability and financial remedies is important. |
