Why Aren’t Watch Companies Suing Each Other For Copyright Infringement All Day Long?

James M. from Halifax, Nova Soctia, Canada asks:

How litigious are watch companies? I am thinking of the Invicta that looks like a Submariner or the Swiss Legend that looks like an Audemars Piguet, and so on and so forth. Does Rolex or Audemars Piguet just consider them "homages" and leave them alone? Do they think these companies cross the line and sue? Is there a system companies like Invicta use so they don't get sued such as just changing a look slightly? Can the sue?

I ask these questions because I see so many established companies borrowing designs but I never hear of them being sued.

This brings up a lot of interesting legal and business questions that could take an entire book to fully answer. While we could get into some of the more interesting elements of intellectual property law and the relevant cases, I think that is beyond what most people want to read about in answering what is a very legitimate question about many of the watches people see.

Let us begin by saying that many elements of watch design are not protected under intellectual property law and can freely be "copied" by other companies. This is why you see so much flagrant "homagery" all over the place. Having said that, lawsuits occur all the time and brands have a deep interest in protecting design styles that help people identify products.

One issue is that because most elements on watches are functional, they are or would have been protected not by copyright, but by patents - which are meant to cover functional inventions. In the United States, patent protection only lasts a certain amount of time, and after that anyone can use the invention. Since a lot of watch design is so old, no more patent protection exists. This exists for elements that are "mostly functional" versus "mostly decorative."

Some watches have design patents applied to them which are a bit different, but this is rare as design patents have other special criteria. Copyright is another potential form of protection that exists for original works of authorship. The key there is "original," and it is difficult to many brands today to assert that their designs are original given all the brands that have designed so many different timepieces over the years. While copyright might make the most sense, it is very infrequently used to assert design protection in timepieces which are for the most part constructed of functional elements.

Where some brands do have limited success is in using trademark law to assert protection for their distinctive designs. This is similar to a design patent in application and the idea is about people confusing the origin of a product. Brands are often able to assert protection over their logos and more unique design details but arguing that there is a degree of "consumer confusion" over who produced a product.

Sometimes brands use more simple tactics such as claiming unfair business practices and other claims against would-be competitors who reproduce their valued designs. For the most part, there are enough minor differences in those "homage" watches you are talking about so that these protections don't kick in. Rolex has a hard time saying that a similar watch from another brand with a different name on the dial would be confused with a Rolex given the now almost generic nature of the Submariner design.

There are many interesting examples of brands suing each other people they claim a competitor copied a design element. Many are unsuccessful and those that are infrequently hinge purely on intellectual property claims. However, a recent court decision did I believe fall in favor of Audemars Piguet against perhaps Swiss Legend on the copy of their well-known Royal Oak Offshore design.

With various competing international laws and complexity of suing based on intellectual property claims when no patents apply, and when copyright cannot be enforced, it is less common than you may think for watch brands to sue each other for design-copying. Looking at industries from automobiles to clothing, a high degree of mimicry occurs that doesn't get to the point of a 1:1 copy, but is clearly an instance where one brand is emulating a design feature of another. This is simply "fair play" and the role of high-end brands is the most difficult because they need to be constantly original when releasing new products. They also more or less known that dozens of "cheaper alternatives" are going to borrow their work almost immediately.

As watch lovers, our role is to be mindful of quality and integrity in a brand. Some people love the idea of a lower-priced timepiece with some favorable elements of a more expensive watch. Others seek pure originality in their designs, as they see that as the hallmark of a legitimately artistic brand.

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  • What I find fascinating in a highly litigious business climate is that the horological industry continues to sport a thriving creativity and innovation, in spite of the lack of the advantage provided by patents and copyright law.  I often wonder if the stated intend to grant a temporary monopoly until a patent or copyright expires actually hinders creativity and innovation.  After all, what inventor can claim the productivity of Leonardo or what musician can claim the creativity of Mozart, both geniuses unencumbered by patent or copyright laws?

  • AK74

    It’s because Apple didn’t get into watches yet. Wait and see, they’ll start suing everyone left and right for their silly design patents.

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  • brownm048

    Swiss Legend did get sued by AP a few years ado!

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