Student Paper on Intellectual Property Law

2000

2021

1996

Design occupies an important place in the modern world, and European legislatures have made many attempts, both technical and legal, to protect works of design. The proposals by the European Community for a Directive and Regulation in this area are a response to the widely perceived need for a homogeneous and systematic protection of designs. These initiatives, however, should be considered in light of the many interests at stake and the various solutions proposed in the wake of the Community's past experience in the field of patents and trademarks. This commentary presents both an analysis of the complete texts of the proposals in their "historical" context through annotation of the preparatory stages in the legislative process, as well as an in-depth interpretation of the provisions, seen through the eyes of some of the leading experts in the field.

2013

Designs are protected in the EU by a multiplicity of different, overlapping, intellectual property rights. Traditionally however there has only been limited scope in most EU member states to protect designs by copyright. This is set to change, as the result of an only recently appreciated interaction between legislative changes harmonising the term of protection for copyright works made back in 1993, a decision of the CJEU in 2009 as to the threshold of originality for copyright works generally, and another decision of the CJEU in 2011 as to the consequences in practice of a requirement in EU designs legislation that there be cumulative protection as between copyright and designs. This article discusses how this situation has come about, and what its significance for the future of design protection in Europe is likely to be.

I wrote and published this book in 1999/2000, based on my doctoral work, published by Sweet & Maxwell. It is no longer in print though hard copies are available on Abe Books or through third parties on Amazon.co.uk. There is an uptodate "2nd edition" - entitled Design Law in EU and US", 2010 - however, vast parts of this first book are not re-published ie the historical aspects of national laws. I am happy to share the file. I do, however, assert my moral right of attribution and integrity. Please note that Sweet & Maxwell retain some rights in the title.

2014

Commercial success of a product nowadays largely depends upon its attractiveness and visual appeal. Design nourishes creativity in the industrial and manufacturing sector and thereby helps to expand commercial activities ultimately leading to economic development. For this reason companies use intellectual property laws to protect industrial designs which are important tools for branding. Brand names affirmed by industrial designs have become the most important strategic factor for an increasing number of companies. This article explains how intellectual property laws protect design and compares different design protection systems in the US, the EU, Australia and Japan. This evaluation shows that design protection is considerably different amongst these four developed countries. The article also highlights some of the most important cases relating to industrial design in these jurisdictions. These four countries account for a significant number of design registrations and applicatio...

2016

A design is not new if an identical design, which could be known to the circles specialised in the relevant sector in Switzerland has been made available to the public prior to the filing date or the priority date (Article 2 paragraph 2 DesA). As a consequence, identical prior designs destroy novelty (BGE/ATF 134 III 205, 209, consid. 5.1, sic! 2008, 445, 447, “bagues”; BBl/FF 2000, 2598; J. Herren, in: C. WEINMANN/P. MÜNCH/J. HERREN [eds.], Schweizer IP-Handbuch, Bâle 2013, § 28 Designregistrierung N 4.4). According to the Supreme Court, the concept of identity has to be construed strictly. This means that in particular the features not contributing to the overall appearance of the object in the view of the target public, i.e., the persons interested in the purchase, have to be disregarded. Notably the size of the object and the attention given to it are relevant. Novelty will not be satisfied if the design is different from another one only by barely detectable details. On the con...

Studia Iuridica Lublinensia

The study is a partially approving commentary on the judgment of the General Court of the European Union in case T-488/20 Guerlain v European Union Intellectual Property Office (EUIPO). The issue in the case was the assessment of the distinctiveness of a sign applied for, comprising a lipstick Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 08/02/2023 16:43:03 U M C S Marek Salamonowicz 288 in the shape of a boat hull. In the light of its findings, the Court of the European Union referred to recognised criteria for assessment, such as, i.a., a significant deviation of the design from the accepted norms and customs in the given industry sector, including the aesthetic value and originality of the design, as well as the reference of the applied shape to the relevant public. However, the case lacked evidence of secondary distinctiveness, as well as an analysis of the aspect related to the aesthetic functionality of the product and protection of market competition. The General Court came to the debatable conclusion that the shape in question is atypical for lipsticks and differs significantly from all other shapes on the market and consequently has a feature of inherent distinctiveness. This has resulted in a certain liberalisation of standards in obtaining protection for three-dimensional trademarks without word elements. In sectors where design is diverse, a new and unusual variant of the product's shape or its packaging may, in light of the commented judgment, be protected as an EU trademark. This will probably encourage entrepreneurs to file applications for such signs. For the doctrine of law, the judgment is an interesting source of inspiration for the discourse on the systemic role of legal protection of trademarks and industrial designs.

Contemporary Intellectual Property

This chapter discusses the law of registered designs. It explains the international treaty context for design law, and then considers the substantive law of registered designs in the UK and at an EU level, looking together at UK registered design protection and the Community registered design. Issues considered include: what designs may be validly registered, exclusions from protection, treatment of spare parts and component parts of complex products, challenging the validity of a registration, rights conferred by registration, and defences to infringement. The chapter also looks briefly at the interaction between registered design protection and other IP rights, in particular copyright.

Oxford University Press eBooks, 2019

This chapter discusses unregistered design protection which confers its own form of protection for a more limited period than is the case for other IP rights. The chapter examines the two main forms of unregistered design right: the UK unregistered design right established by Part III of the Copyright, Designs and Patents Act 1988; and the Community unregistered design right. While Community unregistered design right is closely connected to the scheme of registered design law discussed in Chapter 8, UK unregistered design right is a fully independent and distinct form of unregistered protection for designs which is unique to the UK and poses its own particular challenges. The chapter also considers in more detail the evolving and complex interaction of design protection and copyright including recent UK legislative developments.