Module 8 Flashcards
Where is the identity of the designer disclosed?
The identity of the designer is mentioned in the design application and disclosed in the register, for example under Article 18 of the Community Design Regulation the name of a designer is to be mentioned on the register.
Whom does the right to legal protection wrt to an industrial design belong to?
The right to legal protection in the respect of an industrial design belongs to the creator of the industrial design, belongs to the designer. This basic principle that the right originates in the person of the designer is common to many national legislation, Community Design Regulation adopted also this principle.
Who is entitled to a design?
The ownership of designs created by employees is usually granted to employers. This rule is common in different regimes of industrial property law.
What is the rationale behind the employer as an initial owner?
An Employer is an initial owner of the design right. The rationale behind the solution is that the employer bears the costs and economic risk of the design development.
Also, under the EU law the rule, design right initially vests in the designer is subject to the exceptions specified in Article 14 Section 4 of the Community Design Regulation concerning designs made by the employees in the execution of the duties or following the employer’s instructions.
How are the designs entitled?
Firstly, the ownership of designs created by employees is usually granted to employers. This rule is commonplace in different regimes of industrial property law.
Secondly, designs may be also developed in persons of commission. In the case of a commission, a designer organizes the process of design development independently as a self-employed person.
Who regulates the ownership in commissioned designs?
National legislations may regulate the ownership in commissioned designs differently. Under some legislation, the entitlement to legal protection of the design created by a contractor pursuant to the commission may belong to the person who has commissioned to design, a commissioner.
Who is the default owner for commissioned designs?
For Commissioned designs both, registered and unregistered, the default owner is the designer and not the commissioner, as it was previously the case in the UK.
Who is the Designer under the Copyright Design and Patents Act 1988 (UK)?
A provision to this effect is to be found in Section 214 of the Act which states -
- In this Part, the “Designer” in relation to design means the person who creates it.
- In the case of a computer-generated design, the person by whom the arrangements necessary for the creation of the design are undertaken shall be taken to be the designer.
What are the advantages of design registration?
It’s because the registration system confers a number of advantages on the design owner but also it is beneficial for third parties, in particular, it’s beneficial for competitors.
First of all, registration provides some certainty as to the object of protection in terms of giving notice to third parties.
Representation of the protected subject matter sets the boundaries of intellectual property protection. It identifies the object of protection. Moreover, registration informs about the designs priority over later designs.
When are the unregistered designs legally protected?
Under certain laws, rights on designs may arise by the act of creation or fixation of the design in a document, a drawing or a photo, or just by embodying the design in an article or by making the design available to the public with using it on the market.
When a claimant invokes informal protection od design, what is he obliged to prove
The claimant invoking informal protection of a design is obliged to prove the date from which the design is protected and his right to design as well as the identity of the design at issue, moreover, he is obliged to prove that an alleged infringer copied the design. They need to prove coping constitutes the fundamental difference between formal and informal design protection.
How can the registered industrial design be obtained?
A registered industrial design can be obtained through an application filed at the national or regional office of the state or group of states where protection is sought. The application is subject to examination by the receiving office.
How can anyone use a registered design?
Any person interested in using such a design will have the opportunity either to oppose the registration of the design for which application has been made, if the relevant law provides for an opposition procedure, or of bringing proceedings for the cancellation of the concerned registration.
What is the examination system in the context of designs?
The alternative system («examination system») provides for a search of past designs and an examination of the design for which registration is sought to ascertain whether it satisfies the required conditions of novelty and/or originality.
What is the procedure for design registration?
The registration procedure starts with the filing of an application before the competent national or regional office. This, in turn, requires the preparation of an application form, accompanied by the reproductions of the designs for which protection is sought.
One should always bear in mind that the protection of deposited designs is visual, so that only the features shown on the reproductions will enjoy protection.
