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Copyright and Related rights 9.4.2013Legal Counsel IPR Maria Rehbinder• [email protected]
• http://copyright.aalto.fi• Information in Finnish, Swedish and English• Videos including Learn Copyright in Two minutes,
Buying and Selling Copyright • Model agreements
Protection of Product Appearance Features:Copyright, Design Right, and Trademark• Several ways to protect design as intellectual property• Simultaneous and during the lifespan of the product• Design Right protected as an unregistered right in the
EU, can be registered nationally, in the EU and internationally
• Trademark protection can protect the appearance of a product
• Copyright for design that is original above work threshold http://copyright.aalto.fi
The Trade Marks and Designs Registeration Office of the European Unionhttp://www.handsoffmydesign.com
Patent protection 20 year from filing
US4109961 (A)Patent, inventor Peter Opsvik, applicant Stokke As , filed 1.11.1972
Patent application has to be filed before disclosing the invention
An adjustable chair includes a pair of upwardly extending spaced uprights having a plurality of horizontal grooves provided along the substantial length thereof at inner surfaces of the uprights and facing each other, a foot rest plate and a seat bottom plate member having opposite ends respectively disposed in opposite ones of the grooves at desired vertical locations along the uprights. The foot rest and the seat bottom are interchangeable and are tightly held in place by fastening means extending between the uprights.
Trademark
The purpose of a trademark is to distinguish products of one trader from another in the market
Registration gives the exclusive right to use mark as a symbol for goods or services
Registration requires that the trademark is distinctive For example the form of Maglite was not distinctive enough to be protected as trademark ( EU Court of Justice 11.10.2004 ) , the form of a Coca-Cola bottle is distinctive enough
Trademark• Word or a figure ,slogan, letters, graphic design, or
combination of these• Stokke:THE CHAIR THAT GROWS WITH THE CHILD
• The form of a package for example the Coca-Cola bottle,tune, for example the Nokia Tune
• A certain, by number specified shade of colour to a certain product class, for example Fazer blue colour to chocolate
Trademark
The Apple mark can be registered as a distinctive mark in class 9 that includes computers, but could not be
registered for class 29 that includes preserved , frozen , dried and cooked fruit
International Classification of Goods and Services Nice Agreement 45 classes, Goods 1-34, Services 35-45
For basic registration fee 3 classeshttp://wipo.int/classifications/nivilo/nice/index.htmlCTM-ONLINE Trade mark consultation service
http://oami.europa.eu
Oy Karl Fazer Ab Class 30: ChocolatePantone 280 C
Trademark
You can use the R mark only for registered marks
You can use TM for all marks , unregistered marks, used as a trademark
An unregistered trademark can also be established nationally by long and succesfull use, only protected
nationally, harder to defend than a registered trademark
Trademark
Can be registered nationally, for example in Finland
Registration fee in Finland 215 euro/3 classes
Can be registered with one application to whole EU
Registration fee for EU 900 euro online
International registration under Madrid Agreement, requires first EU or national registration. If EU registration is the first registeration, then the international registration is done with OHIM. If national registration is the first registration,
then the international registration is done with PRH
www.oami.europa.eu
www.prh.fi
Trademark
Protection starts from the date of an accepted application and protection last 10 years from registration
Unlimited time as long as renewal fee is paid every 10 years
Other IPR have limited term, a trademark is forever !
In order to remain distinctive a trademark has to be defended against unauthorised use by competitors,
other companies offering products or services
Trademark registration
• Fiskars Oyj• Class 8. • Rek.nro 231754
Design Right
Design right protects new design against copyingRegistration of a design right provides an exclusive
right to use the designOthers may not use the design without the consent
of the design right ownerDesign right requires that design is new and has
individual characterIndividual character means that the overall
impression of the design differs sufficiently from the overall impression of design already made
available to the public
Design right
Individual character is assessed in the group of productsDesign right does not mean to give exclusive right to simple or commonplace designs or basic geometrical forms such as a
squareIf you apply for a design right to be registered in Finland, the
NBPR, National Board of Patents and Registration will inspect your application, and the design is not registered if it is not new
and individualOHIM is the European Union agency responsible for registering trade marks and designs that are valid in all 27 countries of the
EUIf you apply for EU Design right registration there is no
inspection, but claims againts your registration can be made later
The Trade Marks and Designs Registeration Office of the European Union http://www.handsoffmydesign.com
Design Right
When a design right is registered, the registration is valid for five years from the filing date and can be renewed for
four further periods of five years, 25 years max
EU registration+ publication fee for one design is 350 euros
Application fee for registration in Finland is 185 euro
In the application a Locarno class indicated
The registered designs are available in National and OHIM databases
Design Right
In the EU a grace period of 12 months from making available to the public
If registered within the grace period, it is still considered new in OHIM and EU
NOTICE absolute requirement of new in other countries for example in Asia, so if you want to register in Japan, do not publish design before
registrationConsider to register first, even before showing the
design to possible business partnersPublication of a registered design can be deferred
International Registration
• WIPO World Intellectual Property Organisation http://www.wipo.int/hague/en/forms.html
Unregistered Design
In EU also unregistered designs are protected for three years
It is easier to defend a registered designIn order to lisence or sell a design it may be
better to register it
Registered Community Design RCD
• To register online you need max 7 digital pictures of the product, credit card and file the form online
• The pictures must contain only the product, good to have different angles
• Photos or drawings• Assistance in filing
• http://oami.europa.eu/ows/rw/pages/QPLUS/forms/electronic/fileApplicationRCD.en.do
Copyright
Protects works that are original, products of creativity, artistic or literary works
A work has to be fixed to a certain form
Idea, information, subject matter not protected
Protection of form, not the idea or information contained in the form
Copyright Council of the ministry of education and culture gives opionions on originality required for copyright
protection. These products have the originality required:
TN 1995:7Hannu KähönenTrice-chair (1985)TN 2010:10 Alvar AaltoAino Marsio Aalto-vase(1936) TN 2006:9 mm. Eero Aarnio Pastilli-chair(1967)http://www.minedu.fi/OPM/Photo: Creadesign Oy
KKO 1988: 82Krystyna Rudzinski's work exceeded the originality threshold.
Teoskynnys
• |
Piraattilahti.fi ,TTVK used this image
Copyright and Design
Design gets copyright above the work threshold, treshold varies in different
countries
Copyright
• In Germany traditionally ”museum test” if a work is fit for a Design Museum collection , it gets copyright protection
• In Sweden design threshold very low• In Finland work treshold has been high for design,
recently protection gained more easily• www.minedu.fi
Supreme Court of Norway 27.6.2012, Trumf chair infringes Peter Opsvik copyright to Tripp Trapp chair , copyright lisenced to AS: Stokke photo:
internationallawoffice.com
Supreme Court 9.4.2009 Sweden
Maglite lamp (above) was original, design above work treshold , IKEA (below) infringed
copyright
Supreme Court 9.4.2009
• "E24 - Konsumentvaror" • Lika som bär: MagLites ficklampa överst och
Ikeas version under. • Ikea förlorar mot Maglite
Copyright cases in Finland • Design should be primarily protected by Design
Right according to the drafting principles of Finnish Copyright Act, therefore work threshold has been high in Supreme Justice cases KKO 1932 II 267 KKO 1975 II 25 , KKO 1948 II 464 ja KKO 1976 48 cases dealing with furniture and lamp design.
• Ministry of Education Copyright Council has made decisions that follow the Scandinavian trend of allowing copyright protection more easily Folding Chair TN 1995:7; Lamp FYR TN 1997:4, Furniture TN 2004:4.
Copyright cases in Finland
Ministry of Education Copyright Council decisions
TN 2010:10 1976 The Aalto-vase designed by Alvar Aalto and Aino Marsio is protected by copyright
TN 2006:9 furniture design classics by for example Eero Aarnio pastilli chair were protected by copyright.
Copyright protection for design classics is important because these designs have economic value beyond the maximum period of 25 years provided by
design right. TN 2007:7. Ergonomic berry picking device was not above work threshold.
KKO 1979 II 64
• Kalervo Ojutkangas' photograph
• Pekka Jylhä's painting
Work treshold already too low ?
• In Sweden copyright protection for clothing (Skinnjacka)
• Stocholms Tingsrätt 2.12.2009 T 16022-06• Nordisk Immaterial Rättskydd, Häfte 4/2010
Jimmy Skogström: Modebranschens behov av adekvat design skydd
Copyright and Design
Design gets copyright above the work threshold, treshold varies in different
countries
Copyright
Protection is provided by law as soon as the work is original enough to rise above the
treshold of originalityNo registration is needed
The Berne Convention prohibits registration as a requirement for protection
Copyright can be registered in the USA and China
Copyright
Protection starts from the moment of creation and last the lifetime of the author plus 70 years from the
year the author diedGives a longer protection period than Registered
Design Right, therefore important for design classicsIf there are several authors protection from the year
the last surviving author diedCan be sold, lisenced, is passed on as inheritance
Copyright
Copyright consist of two economic rights and two moral rights
Economic rights are the right to make copies and the right to make available to the publicMoral rights are the paternity right and the
right to respect: the name of the author has to be mentioned, the work must not be alterered
without permission from the author
Exceptions to economic rights
In USA and UK fair use is possible without prior consent from the author or payment
In EU there are exception rules defined in the Infosoc Directive and Copyright Act
For example if you wish to use pictures to illuminate a scientific work you can do so without consent of author or payment
Name of the author and the source have to be mentionedCommercial users such as publishers often demand that only cleared
material be used Responsibility for illegally using the works of others severe
C and TM
The Copyright mark C can be used by all authors
Use the circled C then the year of publication and the name of the author, or the company holding the
copyright C 2011 Derek Designer
TM for unregistered trademarks can be used by all who offer goods or services
Derek Design TM
Intellectual Property Agreement
• Intellectual Property can be transferred only with an agreement
• The rights transferred should be clearly defined• Also in employment contracts IPR transfer should be
clearly defined• Finland does not have an work for hire clause in
Copyright Act
Agreement
• The right transferred can be an exclusive right – author can no longer use his/her work
• or a non-exclusive right – possibility to grant rights to several users
• or sole right- author can still use the work but cannot transfer right to a third party saa yhä itse käyttää teosta mutta ei voi luovuttaa kolmannelle
• According to Copyright Act the right to alter and the right to further transfer to third parties must be specifically mentioned in the agreement
Agreement
• Agreement can be made electronically for example by clicking I accept the Terms of the Contract
• A valid agreement if the person accepting has had the chance to view the terms
• Also possible to make agreements by e-mail and defining the transferred rights in the invoice – by paying the invoice client accepts the terms
• Offer + Acceptance = Agreement
