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CLASS 99


The blog for design law, in Europe and worldwide. This weblog is written by a team of design experts and fans. To contribute, or join us, or for any other reason, email class99@marques.org.

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Blog Administrator
David Musker
Henning Hartwig
Hidde Koenraad
Krystian Maciaszek
Peter Gustav Olson
MONDAY, 11 NOVEMBER 2019
WIPO Roving Seminar in Munich

The next WIPO Roving Seminar will take place at the German Patent and Trade Mark Office (DPMA) in Munich on 27 November. It will be held in German and will run from 09.30 to 15.00.

The event will provide an introduction to WIPO services and initiatives. The provisional programme includes topics such as:

  • Introduction to WIPO
  • Protecting your inventions internationally
  • PCT examples and mistakes
  • International registration of trade marks and designs
  • Efficient use of global IP systems
  • Global databases and tools for the connected knowledge economy
  • WIPO ADR services

The speakers will include representatives of WIPO and the DPMA.

In addition to the presentations and discussions, there will be opportunities for networking during the coffee and lunch breaks.

You can find out more and register here. There is no charge for registration.

Posted by: Blog Administrator @ 16.21
Tags: WIPO, DPMA, PCT, Hague, Madrid,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA882

TUESDAY, 5 NOVEMBER 2019
Call for entries for DesignEuropa 2020

Owners of registered Community designs can now submit applications for the DesignEuropa 2020 awards, to be presented in Eindhoven on 20 October 2020.

The Awards Ceremony will held during Dutch Design Week, the largest design event in northern Europe. It will be hosted by EUIPO, the Dutch Ministry of Economic Affairs and the Benelux Office for Intellectual Property.

This will be the third edition of the DesignEuropa Awards, which are held every two years.

There are two categories open for applications and nominations: Small and Emerging Companies and Industry.

You can also nominate individuals to receive the Lifetime Achievement Award.

The call for entries is open until 20 April 2020. Shortlists and winners are chosen by a jury based on aesthetic value and visual appeal of the submitted designs, their demonstrable impact on the market and sound marketing and management of design and other IP rights.

More details about the application/nomination process, eligibility and rules are available on the dedicated website. This also includes information about the winners of the previous two editions of DesignEuropa.

Posted by: Blog Administrator @ 12.14
Tags: DesignEuropa, Eindhoven, EUIPO, BOIP,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA881

WEDNESDAY, 23 OCTOBER 2019
Aesthetic effect of (fashion) design alone may not account for copyright protection
G-Star jeans

Sascha Pres of the MARQUES Copyright Team and his colleague Stefanie Nabrotzki provide a report on the recent CJEU judgment in the case between G-Star and Cofemel.

“Brands confronting change” was the theme of this year’s MARQUES Annual Conference. This claim, however, also perfectly describes the recent CJEU decision regarding copyright protection, which involved brand owner from the fashion world – G-Star – and in which the Court specified the requirements for copyright claims in the field of (branded) products.

Generally speaking, whether a product’s design is beautiful or ugly, art or kitsch lies obviously in the eye of the beholder. Now, the CJEU held that whether the design of a product qualifies as a copyrighted work shall not depend on the extent to which it has an aesthetic effect.

In its judgment of 12 September 12 2019 in Cofemel – Sociedade de Vestuário SA v GStar Raw CV (C-683/17), the CJEU has clarified that patterns and models, in addition to design protection, may enjoy copyright protection if they fulfil the general requirements of copyright protection.

Copyright and applied art

In order to qualify as a work under copyright law, the subject matter must be objectively identifiable and constitute an intellectual creation reflecting the personality and freedom of choice of its author (originality). The fact that the design unfolds a specific aesthetic effect beyond its form that is dictated by the function served, in contrast, is not significant for its classification as a work.

In the CJEU case, the fashion company G-Star relied on copyright law when attempting to prohibit a competitor from imitating special models of jeans and t-shirts in Portugal. G-Star prevailed in two instances on the grounds that copyright protection of works of applied art would not require a particular degree of aesthetic value.

The Portuguese appeal court referred the case to the CJEU and asked whether works of applied art enjoyed copyright protection on the same conditions as those of literature and art, i.e. if they have a certain originality such that they are the result of their author’s intellectual creation or whether their protection was to be made dependent on their aesthetic or artistic value.

It is not a secret that the CJEU applies uniform terms of protection for objects of diverse categories of works, but it remained somewhat unclear whether those criteria should also apply to works of applied art or whether a special level of aesthetic design continued to be required.

The CJEU now clarifies that copyright protection for works of applied art shall not depend on special requirements that deviate from those applying to other categories of works and emphasizes at the same time that copyright protection and design protection should be cumulated only in specific cases so as not to impair their fundamentally different objectives. The Court leaves open what those specific cases are, but clarifies that the criterion of aesthetic surplus – since it is the result of a subjective observation – is not suited to serve as threshold for assessing whether the object is a personal intellectual creation and hence original.

The mere fact that an overall impression produces an aesthetic effect beyond the form that is prescribed by the object’s function cannot justify copyright protection – vice versa, it is not a prerequisite for it either.

In favour of brand owners

The decision may have an impact on brand owner’s strategies regarding the protection of the forms and packaging of their products and therefore has the ability to change the playing field in favour of brand owners.

While getting a product protected by a three-dimensional trade mark is not a safety net and the registered design provides protection for up to of 25 years only, copyright protection lasts until 70 years post mortem auctoris, without any need for registration. This is clearly a sharp and long-lasting weapon.

Sascha Pres and Stefanie Nabrotzki are lawyers with SKW Schwarz Rechtsanwälte and Sascha is a member of the MARQUES Copyright Team. Franz Gernhardt, of Bird & Bird LLP and Chair of the Team, also contributed to this article

Posted by: Blog Administrator @ 11.39
Tags: Cofemel, G-Star, copyright, aesthetic value,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA880

TUESDAY, 8 OCTOBER 2019
Hague System Seminar and Trade Secrets Symposium
WIPO Headquarters

Class 99 readers may be interested in the seminar on “The Hague System: Insights into Refusals and New Developments, Opportunities” taking place at WIPO Headquarters in Geneva on 29 October 2019.

According to WIPO:

The Seminar will focus on national procedures for international registrations of certain major examining jurisdictions, such as Canada, Japan, the Republic of Korea, the Russian Federation and the United States of America.  There will be a roundtable on such procedures, in particular, on the issuance of refusals to international registrations by the concerned Offices in these examining jurisdictions.  In addition, an update will be provided on the recent practical developments of the Hague System – the ongoing modernization and improvement of e-tools, including a detailed introduction to the new features of eHague, the Hague System’s electronic application filing tool.

Finally, a Practitioner in the field of industrial design will share practical experiences and views on successful filing strategies as well as the advantages of the Hague System for SMEs and multinationals.  You will have the opportunity to interact with Hague Registry experts and invited speakers, seek advice and share opinions, experiences and ideas.

Registration costs Sfr300 and you can register online for the seminar up until 6pm on 22 October. More details about the seminar, including general information and a provisional programme, are available here.

Trade Secrets Symposium

WIPO is also hosting a Symposium on Trade Secrets and Innovation in Geneva on 25 and 26 November 2019. The Symposium will be open to the public. WIPO states:

The Symposium will address issues relating to interface between trade secrets and innovation, covering the wide range of aspects on policy, law, economics and business. It also explores new challenges and opportunities for both technological and service innovation sectors, and potential impacts of emerging technologies on the integration of trade secrets in the modern innovation ecosystem.

Find out more, including a draft programme, here. There will be simultaneous translation in English, French and Spanish. You can register for the Symposium here.

Posted by: Blog Administrator @ 09.01
Tags: WIPO, Hague System, trade secrets,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA879

THURSDAY, 19 SEPTEMBER 2019
When is a disclosure not a disclosure? Designs discussed at Annual Conference

The 33rd MARQUES Annual Conference is taking place in Dublin, Ireland this week and this morning featured a session dedicated to evidence of disclosure in design law. As moderator Mikas Miniotas of AAA Legal Services in Estonia explained, this is a complex and evolving question in design invalidity cases, especially where the supposed disclosure took place on the internet. Guidance for design practitioners is available from General Court case law and the new Convergence Programme 10, and EPO practice on patents also provides some useful lessons.

Recent cases and pending issues

Arnaud Folliard-Monguiral, Team Leader, Litigation, ICLAD, EUIPO provided a perspective on disclosure on the internet in registered Community design cases, including an overview of General Court case law, pending issues and an introduction to Convergence Programme 10.

Articles 7 and 11 of the EU Designs Regulation govern what constitutes a disclosure, and these have been addressed in several General Court cases, such as:

  • Case for mobile phone: the Board of Appeal found that one item of evidence from an online platform did not have probative value because representation of the design was lacking, but the General Court annulled this finding. It also said that an e-mail containing informative documents could not be classified as confidential.
  • Lattice: The General Court said that disclosure of small and poor-quality photos can be corroborated by better photos in an undated catalogue.
  • Crocs: Addressing the exception to disclosure, the Court said the correct test is whether it was not actually possible for professionals to be aware of the events constituting disclosure. A design cannot be deemed to be known in the normal course of business if the specialised circles can become aware of it only by chance. It also confirmed that there is no quantitative threshold with regard to actual knowledge of the disclosure events.

Pending issues Arnaud highlighted included: disclosure on pay-to-access websites or those with password protection or file-sharing systems; searchability of the disclosure by keywords relating to the content of the design (an issue that arose in the Crocs case); disclosure by email to one specific recipient; and the time during which the URL remained accessible.

“Some of these issues, and many others, were considered in the context of CP10, which was a project launched two years ago,” said Arnaud. “We have agreed on a final text, which will be presented to the Liaison Meeting on Designs in October this year and will be formally endorsed in November.”

CP10 provides recommendations regarding different types of disclosures on the internet, including the desirability of using a timestamp and to timestamp the entire browsing session, the advisability of including reviews left by users and using a unique code linking information on the internet with other evidence.

The EPO approach

“We don’t know what the internet looks like. Nobody has a good overview of what’s on the internet,” said David Brophy of FRKelly in Ireland. “A lot of stuff out there is not on any catalogue or master list.” That makes it even harder to find what was on the internet in the past, he added.

He said the EPO has been looking at this issue in patent law for about 15 years, and has identified what is good and bad evidence. Good evidence includes: the Wayback Machine, reputable journals, traditional media and Wikipedia. Beyond those sources, said David, “we have to be much more careful.” Forums such as StackExchange that host posts and comments may be acceptable in evidence, though it’s important to remember that policies on dating and editing can change. The level of proof used at the EPO is the balance of probabilities taking into account the totality of the evidence.

Less trustworthy sources include Google search, where dating can be unreliable; short-lived disclosures; and documents hidden in public sight such as those posted on Google Drive but where the URL has not been shared. From a patent law point of view, it is irrelevant if the language is unfamiliar, if there is geoblocking or paywalls or if there is no evidence of actual access, as the relevant person is fictional.

How do companies deal with these issues on a day-to-day basis? That was the question addressed by Amelle Benabdellaziz of JT International in Switzerland, who said that her company is investing more and more in designs. Avoiding inadvertent disclosure requires close collaboration with designers, early filing and monitoring of social media. During the discussion, the speakers addressed topics including the potential usefulness of Blockchain-based tools in tracking disclosure.

The Annual Conference is taking place until Friday. For more updates, view the posts on the MARQUES Class 46 blog and follow #marques19 on Twitter.

Posted by: Blog Administrator @ 14.02
Tags: disclosure, EUIPO, EPO, Crocs,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA878

THURSDAY, 25 JULY 2019
Global Innovation Index 2019 published

Class 99 readers might be interested in the 12th edition of the Global Innovation Index (GII 2019), launched in India on 24 July.

The GII 2019 ranks the world's most innovative economies, with Switzerland topping the list, followed by Sweden and the United States.

It is released jointly by WIPO, Cornell University, INSEAD and the 2019 GII Knowledge Partners, the Confederation of Indian Industry, Dassault Systèmes - the 3DEXPERIENCE Company - and the National Confederation of Industry (CNI) – Brazil and Brazilian Micro and Small Business Support Service (Sebrae). The Index is based on various data that indicate levels of innovation.

The top 10 economies this year are:

  1. Switzerland
  2. Sweden
  3. United States of America
  4. The Netherlands
  5. United Kingdom
  6. Finland
  7. Denmark
  8. Singapore
  9. Germany
  10. Israel

China is ranked 14th and Japan 15th. The top-ranked economy in sub-Saharan Africa is South Africa, which ranks 63rd in the world. Chile (ranked 51st) is top in Latin America and the Caribbean, while India (52nd) is top in Central and Southern Asia.

Twelve of the top 20 economies are in Europe.

“The GII shows us that countries that prioritize innovation in their policies have seen significant increases in their rankings,” said WIPO Director General Francis Gurry. “The rise in the GII by economic powerhouses like China and India have transformed the geography of innovation and this reflects deliberate policy action to promote innovation,” said WIPO Director General Francis Gurry.

The theme of GII 2019 is “Creating Healthy Lives – The Future of Medical Innovation”. Chapters in the report look at how medical innovation, including the use of AI, genomics and mobile phone-based health applications will transform the delivery of healthcare.

Read and download more information about GII 2019 and watch videos from the launch in India on WIPO’s dedicated page.

Posted by: Blog Administrator @ 10.32
Tags: GII 2019, WIPO, Cornell, Switzerland,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA877

MONDAY, 1 JULY 2019
World Industrial Design Day 2019

Saturday 29 June marked World Industrial Design Day 2019!

Find out more about what was happening using the hashtags #WorldIndustrialDesignDay and #WIDD2019 on social media.

Below are some of the messages on Twitter to mark the occasion. Readers are also invited to share their experiences of the day in the comments to this post.

For more information on industrial designs, visit the Designs Team page on the MARQUES website.

 

Tomorrow is World Industrial Design Day! #DYK that design-intensive industries contribute 11.9 % of employment and 13.4 % of GDP in the EU? Learn more about design rights and how to register them at EU level: https://t.co/OrxaaYGLb4#WIDD2019 https://t.co/tvlDCSweF4

— European Union Intellectual Property Office (@EU_IPO) 28 June 2019

Today is…World Industrial Design Day!🎉 Did you know that fashion, furniture and food packaging…can all be industrial designs? 🤔 What are industrial design rights (also called design patents), and why are the important? Find out at https://t.co/SFPRDToEF9. #WIDD2019 pic.twitter.com/2wNaK62E0m

— World Intellectual Property Organization (WIPO) (@WIPO) 29 June 2019

Happy World Industrial Design Day to designers everywhere 🌍

Over 100,000 designs are registered with the @EU_IPO every year! The more attention businesses pay to design, the more successful they are, find out why here 👉 https://t.co/lOuJZT6nee @worlddesignorg #WIDD2019 pic.twitter.com/Ow4MikQyLB

— Ideas Powered (@IdeasPowered) 29 June 2019
Posted by: Blog Administrator @ 09.16
Tags: WIDD, industrial design, EUIPO, WIPO,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA876

MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.


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