Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
Food design:
Valore e tutela
Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
Legge Americana (Du Mont-Janis)
Congress had 2 spare days…
- from Patent for invention
- Invention of Design to
- Patent for Design.
to
Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
Regolamento
Europeo (Marianne Levin-Franzosi)
1. Individual character
- from New to
- Distintive to
- Eigenart to
- Individual character.
Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
a. Distinctive Character:
A 1. The original Max Plank proposal: “An industrial
design shall not be considered to be new if it was
anticipated by the appearance of a product which, by
publication or by public use, has been made accessible
to interested business circles in the European Community
before the relevant priority date.
An industrial design is distinctive if it has an overall
appearance which distinguishes it from any subject matte
known at the relevant priority date by the different
impression which it gives”.
design shall have a
distinctive character if, at the relevant date, it is
not known to the circles specialized in the sector
concerned operation within the Community, and through
the overall impression it displays in the eyes of the
relevant public it distinguish itself from any other
A
2.
The
Green
Paper:
”A
Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
Eigenart, (Particolarità,
A 3.
in German becomes
caratteristica)
A 4.
in the translation becomes Individual character.
A 5 Finally, everybody agrees on Individual Character
in Europe
– but AIPPI objects
–
so
it
everybody
Character Worldwide.
Art. 5: deleted
(After – deplorable industry).
agrees
on
Individual
the word “significantly”.
pressure
of
the
textile
Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
2. Informed user
The man on the Clapham omnibus? (2014 UKSC 49, per
Lord Reed).
On the Shaukiwan tram (as they say in
Hong Kong)?
No !! He (or she) understands the type of products in
question, but is not a design specialist. He has
knowledge of all designs on the market, but does not
go outside his specific area (not even if the
different area is close?)
“The he-hare’s feet go hop and skip,
Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
The she-hare’s eyes are muddled and fuddled.
Two hares running side by side close to the ground,
How can they tell if I am he or she?”
Che si può tradurre come:
“Il coniglio maschio si acquatta guardando terra
La coniglia femmina si guarda attorno con occhi
vaghi
Ma quando entrambi corrono nella brughiera
Chi sa distinguere tra coniglio e coniglia?”
You are unable to
knows quite well.
distinguish,
but
the
she-hare
Therefore the informed user is a sort of she-hare.
Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
Avv. Prof. Mario Franzosi
3. Overall impression
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
The informed user sees dissimilarities where the uninformed
would not. Details are relevant, even if common-or-garden.
Abstandslehre1. This is a theory developed in Germany for
trademarks, but it could valid also here, and also for
design and trademark. It is said that: If we adopt a strict
standard for the evaluation of requirements of protection,
we will have to use the same standard for the evaluation of
infringement.
Where creativity is intense and the density of design high,
less difference is required. But, as a compensation, scope
of protection is limited.
I doubt the theory is sound. Validity and scope
protection are not necessarily strictly connected.
of
_________________________
1BGH
18.01.1955, GRUR 1955, 415 (417) -"Arctuvan"/"Artesan
Die Berufung auf ältere Marken Dritter - Rechtsvergleichende
Untersuchung zum deutschen, französischen und Schweizerischen Recht, GRUR
Ausl 1965 Heft 6, p.285; Beier, Basic Features of Anglo-American, French and
German Trademark Law, IIC 1975. 66 “According to this theory the scope of
Schricker,
Avv. Prof. Mario Franzosi
A.
From
law) …
an
American
concept
of
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
design
(copyright
§ 1301: “The designer or other owner of an original
design of a useful article which makes the article
attractive
or
distinctive
in
appearance
to
the
purchasing or using public may secure the protection
provided by this chapter upon complying with and subject
to this chapter:”
§1302:
“Protection under this
available for a design that is—
chapter
shall
not
be
(1) not original;
(2) staple or commonplace, such as a standard geometric figure,
a familiar symbol, an emblem, or a motif, or another shape,
pattern, or configuration which has become standard, common,
prevalent, or ordinary;
(3) different from a design excluded by paragraph (2) only in
insignificant details or in elements which are variants
commonly used in the relevant trades;
Avv. Prof. Mario Franzosi
B.
… to WIPO …
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
“Industrial designs are what makes a product attractive
and appealing; hence, they add to the commercial value of
a product and increase its marketability.”
C. ... to the European system ...
European Union design legislation provides for registered
and unregistered Community designs. See Regulation (EC)
No. 6/2002 of December 12, 2001 on Community designs
(Community Designs Regulation – CDR) and national design
laws in the 27 Member States of the European Union, as
per Directive 98/71/EC of October 13, 1998 on the legal
protection of designs (Designs Directive). Registered
Community designs are administered by the Office for
Harmonization in the Internal Market (Trade Marks and
Designs) (OHIM), in Alicante.
Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
For novelty a design needs to vary in more then just
“immaterial details” from other existing designs.
Individual character requires that a design creates
overall a different impression on the “informed user”,
namely a person with knowledge of designs in the
applicable field of activity. In contrast to trademark
cases (“imperfect recollection”), the comparison in
design law is performed with the design to be examined
and the other designs side by side. The informed user is
“particularly observant and has some awareness of the
state of the prior art, that is to say the previous
designs relating to the product in question.”
A product may, at the same time, have a design right and
qualify
for
protection
under
other
IP
rights,
particularly under copyright and trademark law.
Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
D.
… to (what I consider) the CORRECT definition of
design:
A product is the result of design when its shapes are
functionally and aesthetically coherent.
(Giurì del Design)
Functionally
and
aesthetically
definition of design.
coherent:
this
is
If a product works, is beautiful. If it is beautiful, it
works. If it is ugly, it does not work. If it does not
work, it is not design (and does not sell). (If it sells,
is it design? Or the customers are not educated?)
Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
Steve Job said: Design is not what it looks like and
feels like. Design is how it works.
This definition is incomplete:
DESIGN IS NOT WHAT IT
DESIGN IS HOW IT WORKS.
LOOKS
LIKE
AND
FEELS
LIKE,
IF IT WORKS PROPERLY, IT IS DESIGN. THEREFORE, IT IS
BEAUTIFUL.
A designer is satisfied of his (or her) creation when
he (or she) believes that everything is in order.
Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
Final definition of design:
Is the same definition that Gombrich gave for Art:
Everything in Order
Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI
FRANZOSI DAL NEGRO SETTI
Australia : Advisory Council on Intellectual
Property
E-mail: [email protected]
Economic life of design protection: 80% for 5 years; 18%
for 10.
Type of protection (as per I.P. expert opinion):
Copyright:
23%
Patent:
14%
No formal right:
20%
Trademark
37%
Design:
25%.
Confusion !!
What happens if A creates a drawing of a new bicycle?
-If it is an artistic work, A can prevent others
from selling prints and also
from making bicycles;
-If A makes bicycles, he loses his ability to rely
on copyright: if he wants
protection he should register
a design BEFORE entering the market.
Avv. Prof. Mario Franzosi
AVVOCATI ASSOCIATI FRANZOSI DAL NEGRO SETTI
E-mail: [email protected]
THANK YOU!
Mario Franzosi