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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. - PowerPoint PPT Presentation
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WELCOME TO THE KINGDOM OF WELCOME TO THE KINGDOM OF
IRRATIONALITY!!!IRRATIONALITY!!! Giulio Zanetti
Turin, 8 November 2012
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INDUSTRIAL DESIGNSINDUSTRIAL DESIGNS
HistoryHistory
Definition:
“Aesthetic Shape of mass-produced products”
Protection forExpression of idea
Design embodied in the object
For what you see
the appearance of the whole or a part of a product resulting from the features of, in particular, the ...
lineslines
colourcolourss
shapeshape texturetexture
contourscontours
materialsmaterials ornamentationornamentation
What is a “design” under EU rules?
Examples of designs registered at OHIM (top 16 Locarno classes)
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Industrial
New
MAIN CHARACTERISTICSMAIN CHARACTERISTICS
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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
NOVELTYNOVELTY
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NO if dictated essentially by the function art 25.1 TRIPS
NO if contrary to public order, religion or morality
MAIN CHARACTERISTICSMAIN CHARACTERISTICS
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Functional or ornametal ?Functional or ornametal ?
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NOVELTYNOVELTY
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NOVELTYNOVELTY
Respect of Chinese design registrations before OHIMInvalidity division decision of 31.03.08 (ICD 4349) – RCD is declared invalid in light of
prior Chinese design
RCD 000649-0011
CN 3539443
Prior design
Example of design lacking NOVELTY
Later design which lacks
novelty
The “angry man” case
Community design
(for T-shirts)
Prior design
Individual characterBoard of Appeal: No individual character, because overall impression is similarGeneral Court: Yes, because facial expression express differentfeelings (angry vs thoughtful)
T-513/09 of 16 December 2010
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
The “Crocs” case
Invalidity action by a competitor
Grounds of invalidity:
1. Lack of novelty2. Lack of individual character
Registered Design
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’)
- Displayed on the 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?
The “Crocs” case: novelty (end)
• Novelty not OK:
- Sales: too many, clogs must have been seen by lots 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
Ohim Board of Appeal said:
Events amounted to ‘self-disclosure’
Events could be known outside USA, to interested circles in the Community
The “Crocs” case: indiv. character
Only difference is the REAR STRAP
An accessory, purely functional element, cannot have an impact on the overall impression of a design
Earlier design: the RED one!!!No Individual Character because same ‘overall impression’
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
The “Lawnmower engine”
Registered Design(internal-combustion engine)
Prior Design
Problems: Who is the ‘informed user’? User of the component or the complex product?
The product is a ‘component’ of another product (here, a lawnmower)
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
The “Ferrari” case
Earlier design: a real F1 car Registered Design (a toy)
Conflict between the real product and a toy representing that product
Who is the informed user? A grown up collector? A boy playing with toys?
What is the overall impression?Very similar
Design is invalid
R 84/2007-3 of 25 January 2008