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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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Is the classic Volkswagen camper (early splitscreen - type

Customer Question

Is the classic Volkswagen camper (early splitscreen - type two introduced in 1949) iconic exterior shape covered by copyright or any IP?
If this shape was used (for example) as the external shape of a microwave would it be any form of infringement? this is based on no "VW logo" used and no written indication of any connection to VW?
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.

Alex Watts : Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.
Alex Watts : Could someone think it is a VW camper please?
JACUSTOMER-2i8x333q- :

The camper will not be to scale but will look like a vw camper van of that year

Alex Watts : Will you be saying its a VW camper?
JACUSTOMER-2i8x333q- :

No

Alex Watts :

Ok - if you are not using the logo or saying its a VW that is fine

Alex Watts :

This is because although the design will be similar then clearly if you were designing a car it would be a breach of IP

Alex Watts :

However on the basis it is a microwave and clearly not intended as a car then it wont breach their IP

Alex Watts :

Can I clarify anything for you about this today please?

JACUSTOMER-2i8x333q- :

Ok,

JACUSTOMER-2i8x333q- :

thnas

JACUSTOMER-2i8x333q- :

OK, Thanks. Would there be an issue with copyright as the shape is similar?

JACUSTOMER-2i8x333q- :

This question is asked as we are currently going through a licensing process with VW and we have now been told there is another interested party in obtaining a license very similar to our application and ours maybe rejected is the other party is successful. We need to understand the position this would leave us in as we have invested alot of time and money at this point and if the license is rejected could we still product the item with no risk of legal action.

Alex Watts : Yes. The test is could it be confused with the VW design.
Alex Watts : If the answer is yes then you can't use it as it would be a breach of IP
Alex Watts : If the answer is no, it could not be confused then you can use it.
Alex Watts : That is the legal test.
Alex Watts : Does that clarify the position?
JACUSTOMER-2i8x333q- :

Can you clarify a little further as you have answered yes to my last question howver I am unsure what part of the question is being answered.

JACUSTOMER-2i8x333q- :

In your first answer to my initial question you have said that as long as it is not a car then its ok, but in your last answer you have said yes. the test is could it be confused with a VW design. As the microwave is clearly not a car however it looks like a vw car would that be ok.

JACUSTOMER-2i8x333q- :

To clarify the question, If I manufacture a microwave that looks like a VW camper van with no VW logo and no other reflection to VW other than the obvious similarity in overall the shape to a VW camper would I be at risk of Copyright or any IT or trademark issues.

Alex Watts :

Ok - if a customer could be confused between the design and VW then you can't use it

Alex Watts :

If a customer thinks it looks like a VW Camper then you can't use it as the IP belongs to VW

Alex Watts :

Does that clarify?

JACUSTOMER-2i8x333q- :

Not really, a grey area exists as things are never clear cut! Your first sentence "Ok - if a customer could be confused between the design and VW then you can't use it" is that specifically in regards to a vehicle? a customer could not mistake a microwave for a car so how important is the shape?

JACUSTOMER-2i8x333q- :

Your second part "If a customer thinks it looks like a VW Camper then you can't use it as the IP belongs to VW" how can I clarify what a customer may perceive? If we design a microwave that has similar traits but has no reflection to any camper they made would that be OK? For example if I made the front look like a camper but not to scale reflecting the front of a Baywindow 1969 - 1979 and the back like but not to scale a 1946 - 1968 this would not look like any camper they manufactured, would this now not just be my design?

JACUSTOMER-2i8x333q- :

The recent court case with Trunki resulted in the court deciding there was no infringement as the two designs are different enough, this is with two child's suitcases - they are the same item they look very similar but as the copy case used ears as handles instead of horns and the finish was of a different texture the court found no breach as the two designs were different enough and the case was lost by Trunki. As a microwave is nothing like a car - the finish is different - the scale is different and the design is not the same as any VW ever produced - would this be Ok?

Alex Watts :

Trunki is an interesting one as you know about suitcases and when comparing cases they need to be on what is called 'all fours' that is turn on the same facts

Alex Watts :

Clearly this one does not

Alex Watts :

The design has to be so different that it is obvious a customer can't be confused

Alex Watts :

That can be hard and a matter of interperetation

Alex Watts :

Litigation is never certain and can be expensive. If you were taken to Court and VW lost, they may well appeal which means further costs

Alex Watts :

That is why I took the conservative approach - because I have not seen all the evidence, designs etc.

Alex Watts :

But the general rule is if a customer can be confused then it is likely to be a breach of IP

Alex Watts :

After all if the design was different enough, why go to VW for licencing in the first place?

Alex Watts :

Can I clarify anything else for you please?

JACUSTOMER-2i8x333q- :

No thats great many thanks

Alex Watts : Ok, all the best with this.
Alex Watts : If I could invite you to rate my answer before you go today.
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Alex Watts :

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