Module 7 Flashcards
Define design.
A broad definition can be found in Article 3 (a) of the EU regulation on community designs:
(a) “Design” means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation;
What are designs in a restrictive meaning? Explain “models” in French in brief.
Designs consisting of two-dimensional patterns or ornaments embossed, engraved or placed upon an article are sometimes called “designs” in a restrictive meaning (Dessins In French)
Those consisting of the shape of a product may be referred to as “models” (models in French)
What are the subject matters of the legal protection of industrial designs?
The subject matter of the legal protection of industrial designs are not articles or products of certain category but rather the design which may be applied to or embodied any sort of articles or products.
What does Article 3(b), 3(c) of the REGULATION 6/2002 (=Article 1 of the Directive 98/71) talks about ?
It talks about a product and a complex product.
(b) “product” means any industrial or handicraft item, including inter alia parts intended to be assembled into a complex product, packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs;
(c) “Complex product” means a product which is composed of multiple components which can be replaced permitting disassembly and re-assembly of the product.
Why are functional features denied protection under the design regime?
Functional features are often denied protection under the design regime. Reasons for that are numerous. One of them is the desire to avoid a monopoly of technical solutions and to avoid an overlap with the subject matter of patent protection.
Why many regional and national laws contain such limitation of industrial design protection for design dictated essentially by technical or functional considerations?
Many regional and national laws contain such limitation, which performs a fundamental function (e.g. Art. 8(1) EU Regulation on Community designs and Art. 7(1) EU Directive on the legal protection of designs).
What theories have been proposed and are currently applied at national and regional levels in respect of functional designs?
The first one considers «functional» a design which is mandatory to obtain a technical function. It is also known as the multiplicity-of-forms theory
The second theory deems «functional» a design which is dictated only by technical considerations, also known as the causality theory.
What is “must fit” feature of design functionality?
Must fit features are those which must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function
What is “must match” feature of design functionality?
Must match features of an article are «dependent upon the appearance of another article of which the article is intended by the designer to form an integral part» (art. 213 UK CDPA). In this case, there is no technical functionality at all.
How do “Must Fit designs” differ from “Must Match Designs”?
While «must fit designs» do not receive protection in many countries, the situation is quite the opposite in respect of «must match designs».
What is the requirement for protection of Design?
As provided in Article 25, section 1 of TRIPS:
“It’s a requirement of all industrial design laws that protections through registration shall be granted only to designs which are novel and/or original.”
What is a qualified standard of novelty?
A qualified standard of novelty is sometimes required, the qualification may relate to time, meaning that novelty is judged by reference to designs published within a limited preceding period of time; or may relate to territory, meaning that novelty is judged by reference to all designs published within the relevant jurisdiction, as opposed to anywhere in the world; or may relate to means of expression, meaning that novelty is assessed by reference to written or tangible disclosures anywhere in the world and to oral disclosures only within the relevant jurisdiction.
What are the broad policies in favor of a qualified standard of novelty?
The broad policy argument in favour of a qualified standard of novelty is that one purpose of design registration is to encourage new design within the relevant jurisdiction, so that a novel design registered within that jurisdiction should not be deprived of protection by the publication elsewhere of a design which its originator did not introduce into the jurisdiction to add to the designs available to industry.
When i disclosure of a design to a third party is taken into account?
The disclosure of a design to a third party under a condition of confidentiality does not destroy the novelty of the design. A design is considered to have been made available to the public if it has been published (e.g. following registration), exhibited (e.g. at fairs), used in trade or in any other way disclosed (through the internet, in a catalogue or a magazine, etc.). Almost any disclosure of the design anywhere in the world and at any point in time will be taken into account.
What is a safeguard related to community guide under Art. 7?
The design will not be deemed to have been made available to the public if specialised circles within the EU in a given sector are unaware of the design or if only specialised circles outside the EU have knowledge of a particular design. This “safeguard clause” excludes from prior designs worldwide but obscure disclosures.
