resgistered design protection Flashcards
(18 cards)
designs and technological developments
creation of 3D printers-
-hargreaves report- “has radically atltered the way in whcih many designs are produced, and the development of fabrication through 3D printing”- made it more easier and accessible to copy designs
why do we protect designs
-process involves, investment, time and money
-protection is necessary to provide incentives and encourage investment
-prevents misrepresentation of a design
however assumption that designs are less creative than artistice works because-
1. designers are contrained by subject matter (only so many ways to design something)
(as a result of this assumption designers are marginalised in design law- focus on design)
2. designers are contrainer by the market- fashion trends limit designs
3. rarely undertaken by an individual- product of a number of individualse
evidence of design law focusing on design instead-
-protection commences from either the date on which the design was first made available or registered
-duration of design rights is not linked to the life of the designer
goverened by
Copyright, Designs and Patent Act 1988
- UK registered design system mirrors the EU system
registered design system
(factors to consider for choosing this)
-a question of business strategy
-depends on cost, importance of monopoly protection, likelihood of competitors, scope of the potential market
-registration process is virtually automatic (only a formal review of application)- minimises formalities, makes it simple, and minimal cost
-more accessible to small- to medium enterprises/individual designs (target audience)
benefits of registering design
-provides certainty (you have priority over latest designs) and justifies further investment of a design
-registered designs are stronger than unregistered (unreg-only infringed when copied, reg- can object to the use of designs)
-reg- provides protection for 5 years which can be reniewed 4 more times (so 25 years)
(but alot less then copyright which is tied to the lifetime of the author plus 70 years)
-exclusive right to use the design (not just resctricted to the product designed on)
applying to register
-apply to the designs registry at the intelectual property office
-governed by registered designs act 1949 amended by the CDPA 1988
-sc1(1) RDA- a design may be registered under the act on the making of application for registration
-application should include
-2 identical representations of the design (plus an explanatory description)
-product statement
-disclaimer idenfiying the features of the appearance of the design (optional)
-signed declaration that the design is new and has individual character
-fee of £60 per application
representation
visual depicition of the design which helps to define the scope of protection (confirms the appearance of the product)
- purpose- to identify the design so that the public can see what features are being protected
-can be in any form (e.g pencil drawings..)
-however style of representation can play a role in protection
-PMS international Group v Magmatic 2016- no infringement as grey scale presentation did not represent colour or specific features
discussion- this case undermines the scope of protection so this questioned whether registered designs do legally protect design
-explanatory description- clarifys specific aspects of the products appearance
in the PMS case the represnetation didnt describe features (such as the colour)- so only ptotected grey and black colour
benefits of identification of the product
-not limited to the particular product mentioned in the registration
-use of a motif (can expand products)
-enables the design to be classified and for searches to be made
grounds for refusal and examination to register
RDA 1949 S3A- a deisgn application can only be refused on certain specified grounds
-if fails to comply with the rules under the act
-does not comply with the definition of a design
requirements for protection (low threshold- to encourage people to make designs)
- there must be a design (appearance, features, and products)
- the design must be new
- the design must have individual character
- what is a design
RDA 1949 s1(2) defined as-
the appearance of the whole or part of product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product or its ornamentation”
-3 elements
appearance, features, product
a. appearance
not defined but said to result from- lines, contours, colours, shape, texture or materials of the product (very broad)
-no requirement to be attractive or aesthetically pleasing (purely netural terms)
-can include microscope designs- Fulton v Totes Istomer 2004
-texture- how a product feels is not protected as it is the look of the texture not its feel
do all aspects need to be visble?- only concerned with external appearance
-hidden features-
-polish ice cream case 2007-hidden filling in icecream so couldnt visibly see, not satisfy
-cookie case- hidden filling in cookie, not satisfy
(criticized)
b. features
-appearance that is protected must result from the features of a product
(e.g buttons, colours, screens)
c. products
RDA s1(3)- products defined as
-“an industrial or handicraft item other than a computer program, and includes packaging, get up, graphic symbols, typographical typefaces and parts intended to be assembled into a complex product”
-part of a product- apscets of the product e.g handle of a cup
-can be 2D or 3D
-prosethetics and wigs- yes
-tattoos- human body not industrial or handcrafted
-plant breeding (new shaped fruit)- not indsutrial or handcrafted
-Groente en fruit 2013- natural heart shaped tomatoes not products
complex products-
-s1(3) a product which is-
-composed of at least 2 replaceable component parts permitting disaseembly and reassembly of the product
-window blinds system- Louver Lite v Harris Parts 2012
-lawnmowers- Kwang Yang Motor v OHIM 2011
exclusions- not a design
RDA ss1(A)(1)(b)-
-designs dictated solely by technical function (prevents monopolising, technological innovation from being hampered, and applicants from gaining protection for technical functions at a lower cost without complying with patent law)
-designs for products that must be produced in a specific way to enable them to connect to another product (must fit, e.g exhaust pipe for a car)
-desings that are contrary to morality
masterman design application 1991- test is whether the moral principle of right thinking members of the public would think it bery wrong for the law to grant protection
-designs examination practise guide 2017- racist or homophobic
- novelty
RDA s1B(2)- a design is new if no identical design or no design whose features differ in immaterial details, has been made available to the public before the date of application
-no identical previous designs and differs in more than immaterial details
-immaterial- not been defines, household iarticles ltd registered designs 1998- comapring designs and immaterial details make no significant visual impact on the design
- individual character (most significant and difficult, lots of cases fail here)
this makes it difficult to succeed in a claim
RDA 1949 s1B(3)- a design will have IC if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date
-comparing designs to see whether they give the same impression
-informed user- someone who regularly uses the design
-when condisering individual character s1B(4)- the degree of freedom of the author in creating the design shall be taken into consideration
-proctor and gamble 2008- COA said different overall impressions (objective concept)
-Dyson v vax 2010- different overall impressions (many differences)
-samsung v apple 2013- very similar tablet and ipad, apples was alot thinner (major difference), so different overall impressions
discussion
retsrained by subejct matter and market (negative)
-designers are contrained by subject matter (only so many ways to design something)
-designers are contrainer by the market- fashion trends limit designs
procedure of application, representation… (negative)
-Karapapa and McDonagh- “for many creative industries, particularly those which need to respond quickly to changing fashions…the bureacuracy inherent in the registered design system is an anathema”
-trend driven designs are usually short lived and prioritze speed and efficiency, however the long formal process does not satisfy this
time limit- (negative and positive)
-copyright- authors life plus 70 years CDPA s12
-unregistered- 15 years from the first recordal in a design document CDPA s216
-registered- 25 years from the date of filling providing the 5 yearly renewal fees are paid RDA s8
legal rights (positive)-
-registered- the exclusive right to use the design and prevent others from making, offering, putting on the market, importing, exporting, or using a product in which the design is incorporated or stocking such a product regardless of whether its been prove to be copied- RDA s7
-unregistered- reproducing directly or indirectly CDPA s226
-as a result of above provides certainty (you have priority over latest designs)
