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Monday, January 30, 2012

Camouflage Intellectual Property Law

Given our recent coverage of a recent lawsuit filed against HyperStealth Biotechnology Corp. by Digital Concealment Systems, Inc. in defense of their A-TACS FG pattern concerning accusations of Copyright infringement, we have received input on laws governing the protection of camouflage design. 

Riaan Rossouw, whom is working on a book called the "The Camouflage Cookbook" has provided us with a great tutorial based on the research he has done on camouflage legalities. Most of his time has been dedicated to camouflage pattern creation and test areas, but this gives us a lot of insight that we simply would not have the time to research for immediate release.

Mr. Rossouw is a Marketing and Sales Manager for a tech company out of Pretoria, South Africa and has been a camouflage enthusiast for many years as a hobby with a strong interest in the mathematical applications to design. 

He has validated the information provided below, however laws among different countries may face difficulties in applying some of these aspects. For instance, some countries simply won't patent camouflage patterns, so this entire aspect could be problematic when applied in international courts. Perhaps this is textbook for most, but the concise information given makes for easy and informative reading. Enjoy!

Intellectual property (IP) refers to the asset value vested in the camouflage pattern created or the development method and the right of the creator. There are two branches of IP protection, which include Copyright and Industrial property, which can be further subdivided into: 

1. patents to protect inventions – new technical works.
2. industrial designs – which protect the aesthetic of industrial products.
3. trademarks & service marks – unique identification marks
4. layout-designs of integrated circuits.
5. commercial names and designations.
6. geographical indications  –  marks indicating the origin of products

Copyright: The Function and Form of Camouflage
Camouflage patterns have both an aesthetic and utility value, therefore both branches of protection may be used to protect the Intellectual Property. Copyright is the legal concept giving the creator of an original creative work control over its use. Under the World Trade Organization's TRIPS agreement (1995) virtually the entire world has to honor the copyrights of a creator. Copyright does not apply to works that are:

● not creative. If the camouflage is the result of a technical process and anyone using the same process for a given environment will get the same result, then it cannot be copyrighted.
● not original.
● already in the public domain.

Copyright expires 50 years after the creators death (there are some special cases for longer periods). There is a movement afoot to change the lifespan of copyright to 5 years after the author or designate stops making commercial use of the work. 

There are a couple of traditional doctrines limiting the copyright protection afforded, the most relevant ones are the Merger and Scenes a faire Doctrines. The Merger Doctrine states that if there is only a very limited number of ways of expressing the idea then any “expression” of the idea merges with the idea, and cannot be protected by copyright. Once camouflage becomes a perfect science and the idea is the expression of the statistical requirements to match an environment, then it would no longer be protected by copyright.

The Scenes a faire doctrine notes that styles, which are standard, stock, or a common treatment within a genre are not protected. i.e. Pixilated, pointillistic or brush styling can be used by anyone since it has become common. 

A work is considered under copyright from the moment of creation. To prove the date of creation the work must be published or registering with a government office in charge of Copyrights, Trademarks and Patents. Having the graphic time date stamped by a recognized official is also acceptable as is a traceable log of some sort. 

Establishing a proof of the date of creation becomes important if an infringement case occurs. An infringement of copyright takes place when a person reproduces a copyrighted work, or exercises one of
the exclusive rights of the copyright owner without the licence or permission of the copyright owner.

1. The first step in any copyright infringement case is the establishment a valid copyright ownership by the plaintiff. If the traceable record of creation exists, then the ownership is established. 

2. The second step is to establish actual copying.

● Copying is inferred by showing “striking / substantial similarities” between the plaintiff and the defendants work. The level of similarity is assessed by a person schooled in the relevant field or by “the man in the street” after expert testimony. The differences may indicate that the pattern was an independent creation, negating the impression that the pattern was copied. The “totality method” is appropriate when determining substantial similarity. What is the “total concept and feel”?

● The plaintiff must also show that the defendant had access and used the access, failing this the plaintiff must show wide spread distribution – the court assumes that if a work has been widely seen then the person accused of infringing could have seen it. If the plaintiff fails in showing access (i.e. If he has never published the work) then there couldn't have been copying, hence no infringement.

3. The third step is to establishing misappropriation, in terms of camouflage this is pretty straight forward, if the defendant used the pattern without authorization then it was misappropriated.

Defenses to infringement:
There are a couple of defenses to charges of copyright infringement. The one that would be most commonly cited in terms of camouflage would be independent creation. It is possible for an artist to create a work bearing high similarity to another prior work without input from the prior existing work. The new work can bear many similarities and not be an infringement. If access is not established, there is no copying, even if there is a striking similarity between the two works. (Selle v. Gibb 741 F.2d 896 (7th Cir. 1984) (court held no infringement in The Bee Gees' song, "How Deep is Your Love" despite similarity to the melody of an unreleased song from an unknown composer).)

Remedies to infringement:
If there is a clear case of infringement then there are a number of steps the copyright owner can take to reclaim the rights.

The copyright owner can:
1. Seek an injunction to keep the infringer from making use of the infringing material.
2. Get an order for the impound of existing material copies of his work.
3. Get an order to destroy existing material copies of his work.
4. Claim damages due to loss of earnings or negative effects on marketing, image, etc.
5. Claim the cost of Legal Fees incurred.

It is the copyright owners choice to enforce the rights whenever it is deemed necessary. Many wait to see if the infringer makes suitable amounts of money before claiming their rights. Relying on copyright for protection is suitable for camouflage which will be used for it's aesthetic value and not it's utility value. If the camouflage will be used for it's utility value then Industrial Property protection must be pursued.

Industrial property: Patents and Industrial Design for Camouflage
There are a number of devices to protect Industrial Property with, but Patents and Industrial Designs are the most useful in terms of camouflage. Patents are the most well known method of protecting Intellectual Property of an industrial nature is patents. Patents can protect products or methods, however the details of the invention must be disclosed to “teach” the unskilled how to perform the invention, in return the creator gets a monopoly for a certain amount of time, typically 15 years.

If a product (the pattern) is patented then it will prohibit others from exactly duplicating the whole or parts of the pattern. Variations from the pattern are allowed as it is assumed that only the embodiment of the pattern as patented has utility. If the method of creation is patented then others will be prohibited overtly using the method to create patterns. The downside is that the genie will be out of the bottle, available for anyone to use – proving that the patented method was used to create the pattern will be near impossible.

An Industrial Design (aka Registered Designs) protects the aesthetics of a useful article (similar to copyright), but it is only applicable to mass manufactured items and to items on which the aesthetic modification does not serve a utility purpose. Similar to copyright, Industrial Design prohibits copying of the aesthetics within substantial similarity bounds. If the camouflage pattern art was registered as an Industrial Design then the one infringing on an Industrial Design has no leg to stand on, as the design would be publicly available.

Jump to Conclusions with IP Law Diagram


Bring everything together, Copyright protection is right for camouflage patterns, which are intuitively designed and not used for it's utility value. Patenting is the right protection measure for camouflage patterns which are scientifically or procedurally made, whether used for it's aesthetic or utility value. Patenting is also the right protection measure for camouflage patterns intuitively created which are used for it's utility value.

Special thanks to Rianna Rossouw, as we would not have had the time to research this information. How the law explained here will be applied in a U.S. Court in the previously mentioned case, will certainly be interesting if it comes down to it. Given that Canada does not provide patents for camouflage, yet the United States does, could play into any judment. However, how copyright law is interpreted by the court and what other unreleased evidence is utilized in the case could be the ultimate decider.