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WELCOME TO THE KINGDOM OF IRRATIONALITY!!!

WELCOME TO THE KINGDOM OF IRRATIONALITY!!!. Giulio Zanetti Turin, 8 November 2012. INDUSTRIAL DESIGNS. History. Definition :. “Aesthetic Shape of mass-produced products”. Expression of idea Design embodied in the object. Protection for. For what you see.

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WELCOME TO THE KINGDOM OF IRRATIONALITY!!!

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  1. WELCOME TO THE KINGDOM OF IRRATIONALITY!!! Giulio Zanetti Turin, 8 November 2012

  2. INDUSTRIAL DESIGNS History Definition: “Aesthetic Shape of mass-produced products” Expression of idea Design embodied in the object Protection for For what you see

  3. What is a “design” under EU rules? the appearance of the whole or a part of a product resulting from the features of, in particular, the ... lines colours shape texture contours materials ornamentation

  4. Examples of designs registered at OHIM (top 16 Locarno classes)

  5. MAIN CHARACTERISTICS • Industrial • New

  6. NOVELTY WW, no time/geo limits Key moment: filing date (or priority) Grace period: 6 months NO nov. if prior disclosure (CERTAIN DATE) registered or used that is ... SAME (ie: idetical or very similar) = same overall impression On INTERESTED CIRCLES

  7. MAIN CHARACTERISTICS • NO if dictated essentially by the function art 25.1 TRIPS • NO if contrary to public order, religion or morality

  8. Functional or ornametal ?

  9. NOVELTY

  10. NOVELTY

  11. Respect of Chinese design registrations before OHIM Invalidity division decision of 31.03.08 (ICD 4349) – RCD is declared invalid in light of prior Chinese design RCD 000649-0011 CN 3539443

  12. Example of design lacking NOVELTY Prior design Later design which lacks novelty

  13. The “angry man” case Prior design Community design (for T-shirts) Individual character Board of Appeal: No individual character, because overall impression is similar General Court: Yes, because facial expression express different feelings (angry vs thoughtful) T-513/09 of 16 December 2010

  14. Individual character (Art. 6 CDR) vs Novelty (Art. 5 CDR) A design has Individual Character if it produces on the informed user an impression that differs from that produced by an earlier design. The designer’s degree of freedom must be taken into consideration. A design has Novelty if it is not identical to an earlier design. Novelty is not destroyed by differences that amount to immaterial details

  15. The “Crocs” case Registered Design • Invalidity action by a competitor • Grounds of invalidity: • Lack of novelty • Lack of individual character

  16. The “Crocs” case: novelty • Novelty - Sold in USA(‘not more than 10,000’, ‘in small areas of USA’) - Displayed at a USA fair(‘dealing with leisure boats’, ‘not terribly attended’) - Displayedonthe web(‘quite unsophisticated at the time’, ‘difficult to access’, ‘not used to find information’) Did these events (which took place several months before) amount to divulgation? Could they become known to the relevant circles in the Community?

  17. The “Crocs” case: novelty (end) Ohim Board of Appeal said: • Novelty not OK: -Sales: too many, clogs must have been seen bylots of people(who travel), these are fashion items (people pay attention) - Exhibition: clogs are boat shoes, therefore a boat exhibition is attended (also) by people interested in clogs - Website: an obvious source of information, clogs could be purchased there Events amounted to ‘self-disclosure’ Events could be known outside USA, to interested circles in the Community

  18. The “Crocs” case: indiv. character Only difference is the REAR STRAP Earlier design: the RED one!!! No Individual Character because same ‘overall impression’ An accessory, purely functional element, cannot have an impact on the overall impression of a design

  19. The “Dog Snack” case Registered Design (dog chew) Prior Design Who is the ‘informed user’? How broad is the designer’s freedom? What are the differences? What are the similarities? Same ‘overall impression’ R 1391/2006-3 of 25 January 2008

  20. The “Lawnmower engine” Prior Design Registered Design (internal-combustion engine) The product is a ‘component’ of another product (here, a lawnmower) Problems: Who is the ‘informed user’? User of the component or the complex product? Visibility of the product: assessment of indiv. character based on parts that have visibility in normal use R 1337/2006-3 of 8 October 2007

  21. The “Ferrari” case Earlier design: a real F1 car Registered Design (a toy) Conflict between the real product and a toy representing that product A grown up collector? A boy playing with toys? Who is the informed user? Design is invalid What is the overall impression? Very similar R 84/2007-3 of 25 January 2008

  22. Thank you!!!gzanetti@idlo.int

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