IP Law III: Design and Trade Marks Flashcards
Legal sources of designs
For the purposes of this Act
(i) “design” means the appearance of a product or part of a product resulting from the features of the product itself or its ornamentation, in particular with respect to lines, contours, colours, shape, texture or materials,
(ii) “product” means any industrial or handicraft item, […], packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs,
DEFINITION OF DESIGN
Section 50
A registered design may also be protected by the Copyright Act from the date on which the design was created or established in a given shape.
Object of protection is the physical appearance of a product!!
“design” means the appearance of a product or part of a product resulting from the features of the product itself or its ornamentation, in particular with respect to lines, contours, colours, shape, texture or materials,
(ii) “product” means any industrial or handicraft item, […], packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs,
SCOPE OF DESIGN PROTECTION
Section 9
(1) Subject to the exceptions following rom sections 10 to 12, the design right shall imply that nobody may exploit the design without the consent of the holder of the right. Such exploitation shall include, in particular, the making, offering, putting on the market, importing, exporting or use of a product to which the design relates, or stocking such a product for those purposes.
The fundamental requirements of protection
The main requirements for obtaining design protection are contained in s. 3(1) of the Designs Act: The design must be “novel” and possess an “individual character”
A design is deemed to be novel if no identical design has been available to the public before the filing date of the application
For the purposes of s. 5(1), a design has become “available to the public” if it was published in connection with a registration, or in other ways has become published, or where it has been displayed, used commercially or has become known in another way
The determination in s. 5 of the meaning of “available to the public” indicates that the novelty requirement under the Designs Act is to be construed in the same way as the requirement under the Patents and Utility Models Acts (and under the old Designs Act), i.e. an objectively global novelty is required
The requirement of “individual character” implies that the overall impression the design affords to an informed user must be distinctive from the over- all impression such user will have from other designs which are publicly accessible before the date of the filing of the application
Duration (Design)
Design rights are protected for the period, or those periods, of five years for which the application was filed, computed from the date of application
The registration may further be terminated by decision of the Danish Patent and Trademark Office or by judgment, e.g. if one or more of the fundamental requirements for design right in s. 3 were not satisfied, cf. the provisions in Chapter V of the Act (ss 25-33)
EXCEPTIONS (Design)
Section 7
(1) A design right shall not be obtained if the design
(i) is contrary to public policy or to accepted principles of morality,
(ii) is in conflict with a prior design which has only been made available to the public after the date of filing of the application ….
(iii) unauthorised
(b) makes use of another person’s trade mark, style or other business identifier,
(c) makes use of a work protected by copyright law or
(d) contains an earlier design.
Legal sources of Trademarks
Section 1
(1) This act applies to every trade mark in respect of
goods or services which is the subject of registration or
of an application for registration, or to which rights are
acquired through use, and international registrations Law with validity in Denmark.
DEFINITION OF TRADEMARK
Section 2
(1) A registered trade mark may consist of any signs, in particular words, including personal names, or designs, letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds, provided that such signs are capable of:
(i) distinguishing the goods or services of one undertaking from those of other undertakings; and
(ii) being represented on the register in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor.
SCOPE OF TRADEMARK PROTECTION
Section 4
Confers on the right holder an exclusive right to exclude the use of identical or similar signs whether or not in connection with similar goods or services.
(3) The rights of the proprietor under subsection 2 include:
(i) affixing the sign to the goods or to the packaging thereof;
(ii) offering the goods or putting them on the market … under the sign…; (iii) importing or exporting the goods under the sign;
(iv) using the sign as a trade or company name …;
(v) using the sign on business papers and in advertising;
(vi) …
What Qualifies for Protection (Trademark)
One of the fundamental preconditions for obtaining trade mark protection is that the mark in question has the necessary distinctiveness, cf. s. 2 of the Act.
It follows from this, first, that the mark must be special so as to distinguish it from other symbols used for commercial purposes
Second, the mark must not be of descriptive nature
Key Take aways
1) Designs and trademarks can have an important impact on consumer purchasing decisions because it connects the product or services with a particular quality through brand-recognition.
2) Designs and copyrights can overlap (especially in the field of product packaging), but designs must be registered and have a maximum duration of 25 years.
3) Trademark protection can be acquired through use or registration, but the nature of the protection is such that registration provides greater legal certainty to right holders?
4) In the marketing of a particular product or service, copyrights, designs, and trademarks can provide overlapping layers of protection, including the product, marketing material, packaging, and the brandlogo.
