a non-disclosure provision preventing the disclosure of confidential information to a competitor by a manufacturer or an exclusivity provision preventing a manufacturer from working with a competitor). When dealing with third parties involves the exchange of intellectual property and/or confidential information, it is always advisable to ensure that appropriate contractual protections are put in place (e.g. Registered designs are relatively inexpensive and easy to obtain in most territories, because the application does not undergo a comprehensive substantive examination in the same way that trade mark and patent applications do. The best way to prevent competitors from copying the design of your product is to file registered designs for the design of that product (registered designs are referred to as design patents in some territories). a copyright infringement claim, a passing off claim or an unfair competition claim), but evidentiary and other obstacles often prevents these claims being successfully made out. It is sometimes possible to make a claim based on unregistered rights in attempt to get the copycat product off the shelves (e.g. When copycat products appear on the market under a different brand name, trade marks are of limited use when it comes to preventing the infringement. There are a few key points to take away from the airline pillow saga.įirst, consider registered design protection for new products. In addition, because the design of their Fly Tot product is on the market and therefore in the public domain, Lu and Kuo can no longer a design patent for their Fly Tot product. However, Lu and Kuo were unable to issue proceedings against Cardone because they never obtained a design patent for their Fly Tot product in Australia. the Plane Pal brand).Ĭardone denies all these claims and argues that, even though the products may be visually similar, her Plane Pal product has a superior design and is more durable.Ĭardone’s company is allegedly expected to turn over $1,000,000 this year and, accordingly, it may have been in Lu and Kuo’s interest to pursue her for infringement of their intellectual property rights.

Lu and Kuo also allege that Cardone subsequently contact the manufacturer of the Fly Tot product based in China to enquire whether the Chinese manufacturer could produce a similar product for a different market under different brand (i.e. However, no deal was ever finalised and a non-disclosure agreement was never entered into by the parties. Lu and Kuo allege that Cardone contacted them asking to be the Australian distributor for the Fly Tot product. Winnie Lu and Kate Kuo allege that Cordone stole the design from the Fly Tot product design and developed by their U.S.

Samantha Cardone designed and developed the Plane Pal inflatable cushion with a view to helping children sleep better on planes. The PLANE PAL product and the FLY TOT product

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