Hi Darren,
If the original products qualify as artistic works (possibly sculptures) then your supplier will have infringed the copyright in the products by copying them, even if he used a different material to make his copies
17 Infringement of copyright by copying
(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.
(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.
(my added emphasis)
And you would then be liable for secondary infringement for dealing in these copies
23 Secondary infringement: possessing or dealing with infringing copy.
The copyright in a work is infringed by a person who, without the licence of the copyright owner—
- (a) possesses in the course of a business,
(b) sells or lets for hire, or offers or exposes for sale or hire,
(c) in the course of a business exhibits in public or distributes, or
(d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,
an article which is, and which he knows or has reason to believe is, an infringing copy of the work.
However as you can see this would only be the case if you knew copyright existed in these products.
The second, and possibly more likely form of protection is something called Design Right, which makes it an offence to copy someone else's design for a product. There can be
secondary infringement of design right in much the same way as with copyright, and again there is a defence of innocent infringement as explained here
233 Innocent infringement.
(1) Where in an action for infringement of design right brought by virtue of section 226 (primary infringement) it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that design right subsisted in the design to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.
(2) Where in an action for infringement of design right brought by virtue of section 227 (secondary infringement) a defendant shows that the infringing article was innocently acquired by him or a predecessor in title of his, the only remedy available against him in respect of the infringement is damages not exceeding a reasonable royalty in respect of the act complained of.
(3) In subsection (2) “innocently acquired” means that the person acquiring the article did not know and had no reason to believe that it was an infringing article.
But design right has a fixed duration: if the design has been registered then the term of protection can be no more than 25 years from the date the item was first designed or the first prototype was made, whichever is the earlier. If the design is of the unregistered type, then it is protected for 10 years from the date it was designed.
In both cases, copyright and design right, the first product which it is alleged was copied, must be 'original' in the sense that it itself was not copied from an earlier work. Depending on how commonplace these items are, that may be difficult for the claimant to prove.
If the owner who claims there has been infringement wishes to negotiate before taking you to court, he needs to explain what right he thinks has been infringed and what remedy he is seeking. Given the defence of innocent infringement which is available to you, all he may be able to do is stop you from selling these products in the future and seizing any remaining stock you may have if the claim concerns copyright, or if it is about design right, then he may only be due a reasonable royalty for the items you have already sold. If this would amount to a serious financial loss then you should certainly consult a solicitor, and you should also do that if you receive a claim form from the court, which means that he has begun proceedings. Ideally the solicitor you consult should be one with experience in IP matters. You can use the
Law Society website to find a suitably qualified solicitor by looking under the heading Business: Media, IT and Intellectual Property.
Good luck.
(all 3 of the above quotes are from the
Copyright Designs and Patents Act 1988. If the designs have been registered, then you may also need to consult the
Registered Designs Act 1949)