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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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Who we all are...
Blog Administrator
David Musker
Henning Hartwig
Hidde Koenraad
Krystian Maciaszek
Peter Gustav Olson
FRIDAY, 3 APRIL 2020
DesignEuropa Awards open for entries until 20 April

Designers and owners of design rights have until Monday 20 April to submit or nominate designs for this year’s DesignEuropa Awards.

The third Awards Ceremony will take place in Eindhoven on 20 October 2020. They are organised by EUIPO in collaboration with the Dutch Ministry of Economic Affairs and Climate Policy and the Benelux Office for Intellectual Property.

Awards will be presented for Small and Emerging Companies and Industry. There will also be a Lifetime Achievement award.

The Award winners will be selected by a jury, the members of which were announced this week. Päivi Tahkokallio, president of BEDA, is chair of the jury.

Full details on the categories and rules, as well as details of how to apply, are available on the DesignEuropa website.

Good luck to any members who enter!

Posted by: Blog Administrator @ 10.30
Tags: DesignEuropa, Eindhoven, EUIPO, BOIP,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA892

MONDAY, 30 MARCH 2020
WIPO DG briefing to be broadcast on 7 April

The annual report by WIPO Director General Francis Gurry will be broadcast on 7 April at 2pm Geneva time. The broadcast will be open to any member of the interested public.

The report, including WIPO's results for the preceding year, is normally presented in a series of meetings. However, the COVID-19 pandemic make physical meetings impossible this year.

The briefing will therefore be broadcast on WIPO’s website and will remain available for later viewing, along with the supporting audiovisual materials.

The Director General is expected to cover WIPO’s 2019 results, programme highlights and challenges for 2020, and the management and impact of the COVID-19 crisis.

Transmission will be in English, with simultaneous interpretation into Arabic, Chinese, French, Russian and Spanish. (Note that an earlier version of this post incorrectly stated that the broadcast would be on 2 April. Apologies for any confusion.)

WIPO has also published an update on COVID-19.

Posted by: Blog Administrator @ 14.11
Tags: WIPO, Francis Gurry, COVID-19,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA891

MONDAY, 9 MARCH 2020
EUIPO analyses a decade of designs

Filings of registered Community designs (RCDs) increased by 36.2% between 2010 and 2019, according to a new report published by EUIPO. There were more than 988,000 applications by 84,000 applicants during the 10-year period.

The report, EUIPO Design Focus: 2010 to 2019 Evolution, is available to view and download (PDF). An infographic showing the key data is reproduced below.

It analyses trends in filings over the past 10 years, including the origin of applications. The top five countries (Germany, United Kingdom, France, Italy and Spain) accounted for 51% of total direct RCD filings. However, over the period, the EU share of filings fell by 15% while the United States and China increased their share by 4% and 12% respectively.

The leading applicant during the period was Rieker Schuh, followed by Nike and Samsung Electronics. Class 6 (Furnishing) was the most popular class, followed by class 2 (Articles of clothing and haberdashery).

During the period, there were more than 3,700 RCD invalidity procedures filed, and over 507,000 RCD registrations were renewed.

In the foreword to the report, EUIPO Executive Director Christian Archambeau writes: “In its next multi-annual strategy, the EUIPO Strategic Plan 2025, the office will be prioritising making EU trade marks and designs more user friendly by further modernising and updating the tools and information supporting different user segments according to their needs.”

He adds: “A modernised design framework can only serve to further underline the importance of this sometimes underestimated IP right, since its accessibility makes it a key candidate for further promotion and wider use, especially for small businesses.”

The European Commission evaluation of the EU and national design systems is continuing. MARQUES contributed to a Joint Paper on the Legal Review on Industrial Design Protection and also published comments on the reform, both of which can be downloaded from the Designs Team publications page.

Posted by: Blog Administrator @ 09.22
Tags: EUIPO, Rieker, EUIPO Design Focus,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA890

TUESDAY, 3 MARCH 2020
Hague System workshop held in Rotterdam

The latest workshop in the popular MARQUES series on Mastering the Hague Agreement took place in Rotterdam on 13 February.

Nearly 50 people attended, including IP practitioners from industry, law firms and IP firms from the Netherlands, Belgium, Germany and beyond.

“It was good to see many new faces, including some younger ones, alongside regular MARQUES participants,” said Willem Leppink of Ploum Rotterdam Law Firm, who introduced the programme.

“We received very good feedback from the participants, who said they don’t often get a chance to hear about this topic in this kind of detail,” he added. “Design work is growing, but it can be hard to get the right information about the prosecution and registration phases.”

Like previous MARQUES events on the Hague System, the seminar provided practical tips on filing applications through the Hague System, addressing questions such as: What are the advantages of filing drawings compared to photos? What kinds of drawings are best? And what role should disclaimers play?

The speakers were Päivi Lähdesmäki, Senior Advisor, The Hague Registry, WIPO, Switzerland and Ellen Gevers, Partner, Knijff Trademark Attorneys, The Netherlands.

The first presentation focused on the experiences gained since South Korea, Japan and the USA acceded to the Hague System. “European applicants are generally not used to receiving refusals in relation to design applications: you just file and it is accepted. But with these new accessions, you know you will get refusals so you are confronted with the problem much earlier. You need to be prepared for that,” said Willem.

The second presentation, by Ellen Gevers, also covered the recent Cofemel judgment from the CJEU. "This was very interesting especially from a Dutch perspective,” said Willem. “We are very used to copyright with a low threshold, so we have not realised the importance of the design system. Now we see it is changing.”

The workshop concluded with a drinks reception, during which discussions continued about the issues raised.

The Mastering the Hague Agreement workshop has previously been held in Milan, London, Copenhagen, Munich and Paris.

This article was included in the February 2020 issue of the HouseMARQUES newsletter, which also includes reports on the improved version of DesignView, design filing tips from EUIPO and the deadline for the 2020 DesignEuropa awards as well as other news about MARQUES activities and events.

Read the full newsletter here. MARQUES members can also sign up to receive HouseMARQUES by email by logging in here.

Posted by: Blog Administrator @ 09.11
Tags: Hague Agreement, WIPO, Päivi Lähdesmäki,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA889

FRIDAY, 28 FEBRUARY 2020
From Lego via DOCERAM to Brompton

Franz Gernhardt and Sascha Pres of the MARQUES Copyright Team take a ride (on a bicycle) through the CJEU’s evolving case law on the scope of IP protection and technical function.  

The CJEU is continuing to develop its case law concerning the scope of protection of IP rights and questions of the technical nature of product designs. This question was already answered by the CJEU in respect of trade marks (Case C-48/09 – Lego brick) 10 years ago and more recently in respect of design law (Case C-395/16 DOCERAM). Now the Court of Justice deals with copyright law.

The dispute was based on a dispute between two bicycle manufacturers before the Belgian courts. The original manufacturer Brompton, whose patent rights on the folding bike had expired, initiated legal actions against a Korean manufacturer of a folding bike. Brompton’s bike is pictured on the right and the Korean bike below right.

The national court in Liège referred to the CJEU two questions: (i) whether works whose shape is necessary to obtain a technical result are excluded from copyright protection and (ii) what criteria must be taken into account when assessing whether a shape is necessary to obtain a technical result. Since 6 February 2020, the opinion of Advocate General Campos Sánchez-Bordona has been available, in which he argues for a cautious balance between design, trade mark and copyright law.

Copyright in works whose form is necessary to obtain a technical result

Not surprisingly, the Advocate General takes the view that works of applied art whose form is dictated by their function cannot be protected by copyright.

However, in the case of mixed forms, where functional and artistic features are combined, protection should only be excluded if the functional elements take precedence over the artistic elements to the extent that the latter are irrelevant. Whether other shapes are also conceivable in order to achieve the technical result is irrelevant to that question.

In his Opinion, the Advocate General clearly argues in favour of applying to copyright the principles already established and known in the field of Community design (DOCERAM) and trade mark law (Lego brick).  

Assessment criteria for the technical conditionality in copyright

If the work had previously been patented, the Advocate General considers that this indicates that the inventor probably assumed that the patented shape was suitable for achieving the desired functionality.

The existence of other possible forms with which the same result can be achieved are not relevant for the assessment of the case. Here the Advocate General refers to the opinion of Advocate General Saugmandsgaard Øe in DOCERAM. At the same time, however, he makes it clear that in the case of works of applied art, the integration of formal and functional features should be analysed in detail to clarify whether the appearance of these works is not entirely determined by technical specifications.

The will of the infringer should not be considered in assessing whether an infringement has occurred. Instead, the question of the assessment of the relationship between form and functionality should be based on the original intention of the designer. It should depend on whether the latter was aiming at an intellectual creation or only wanted to protect an idea applicable to the manufacture of a product.

Again, the previous patent protection, or even the application for a patent, can become relevant again. According to the Advocate General, the fact that an industrial application has been made and that a commercial benefit has been obtained from the invention should provide essential indications of the subjective image of the creator. According to the Advocate General, whether the design was later recognised or exhibited in museums is irrelevant.

As always, it remains to be seen whether the CJEU agrees with the opinion of the Advocate General. If so, more attention will have to be paid in future to ensuring that copyright is not misused to protect technical features which are not (or no longer) protected by a patent due to the absence or expiry of the patent.

However, the Advocate General’s view as expressed above does not render rightsholders defenceless. Rather, it concludes by expressly stating that in cases where protection under trade mark, design or copyright law is excluded, recourse to other provisions to target imitations may be considered.

Franz Gernhardt is senior counsel with Bird & Bird in Germany and Chair of the MARQUES Copyright Team and Sascha Pres is a Partner of SKW Schwarz Rechtsanwälte and a member of the Team. Tobias Vossberg, Associate in the Berlin office of SKW Schwarz, also contributed to this article

Posted by: Blog Administrator @ 08.36
Tags: Brompton, copyright, CJEU, DOCERAM, Lego,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA888

THURSDAY, 6 FEBRUARY 2020
One week until Mastering the Hague Agreement in Rotterdam

The next MARQUES event, a workshop on the Hague Agreement, takes place next Thursday 13 February in Rotterdam – and there are still a few places available.

The workshop will start at 15.30 and conclude with drinks at 18.15. It will be of interest to all international design law practitioners, and will also cover recent case law such as the Luidspreker and Hauck/Stokke judgments, and the Cofemel case.

It will be introduced by Willem Leppink, Partner of Ploum and a member of the MARQUES Council. The first part will look at the experiences gained after the accession of South Korea, Japan and the USA and will be presented by Päivi Lähdesmäki, Senior Advisor, The Hague Registry, WIPO, Switzerland.

The second part is titled “Great design is simple, that’s why it’s so complicated” and will be presented by Ellen Gevers, Partner, Knijff Trademark Attorneys.

The workshop is in English. Find out more and reserve your place here.

Posted by: Blog Administrator @ 15.05
Tags: WIPO, Hague System, Rotterdam,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA887

TUESDAY, 21 JANUARY 2020
Mastering the Hague Agreement in Rotterdam

The popular MARQUES workshop on Mastering the Hague Agreement is coming to Rotterdam on Thursday 13 February 2020.

The workshop will be held at the offices of Ploum Law Firm and will start at 15.30.

It will be introduced by Willem Leppink, Partner of Ploum and a member of the MARQUES Council. The first part will look at the experiences gained after the accession of South Korea, Japan and the USA and will be presented by Päivi Lähdesmäki, Senior Advisor, The Hague Registry, WIPO, Switzerland.

The second part is titled “Great design is simple, that’s why it’s so complicated” and will be presented by Ellen Gevers, Partner, Knijff Trademark Attorneys.

There will be questions after each part and the workshop will conclude with a drinks reception at 18.15.

The workshop will be conducted in English. You can view the programme in full on the MARQUES website.

The cost of the workshop is €100 (MARQUES members) or €125 (non-members). To reserve your place, register online now!

Mastering the Hague Agreement has previously been held in cities including Milan, London, Copenhagen, Munich and Paris. You can find reports of these workshops on the Class 99 blog.

Photo of Rotterdam by Mlefter (CC licence)

Posted by: Blog Administrator @ 09.48
Tags: Hague Agreement, WIPO, Rotterdam,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA886

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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