CLASS 99
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FRIDAY, 5 APRIL 2013
Design law: a Fordham Conference session
A session of this year's Fordham IP Conference was devoted to design. Moderated by Professor Jeremy Sheff, the session was opened by Gordon Humphreys (OHIM), who explained the mysteries of Case C-102/11 P (Baena Grupo, see illustration of grumpy gnomes above), together with the unfathomable topics of the informed user, crowded prior art, freedom of design and the consequences of using dotted lines in Community design registration.
Gordon was followed by Alain Strowel (Covington & Burling, right), who touched on the key issues relating to the "battle of the tablets" between Apple and Samsung. Alain investigated the "new animal in the zoo", the "informed user", in the light of the CJEU ruling in PepsiCo v Grupo Promo (the Pogs case, here). The collision between design right and copyright also affected the Apple-Samsung dispute, since the EU's unharmonised copyright law will protected manufactured products in some countries.
US design patents formed the subject of John Richards' talk. Emphasising the patent dimension to the protection, John observed that obviousness was increasingly being raised as an objection. The protection is not for articles themselves, but for designs for articles if they are ornamental. The claim is crucial, since it defines and limits the protectable ornamental content of the design patent. So far as infringement is concerned, expert evidence is disfavoured: the test is that of the consumer who might purchase the one product believing it to be the other.
The session then turned to discussion. Myles Jelf (Bristows) noted that, with markedly different laws, the US and EU came to broadly the same conclusions as to the Apple/Samsung infringement issue. Annette Kur pointed out the flaw of EU design law, which measures the degree to which an earlier registered trade mark is unprotected against a later design application in terms of the test of design infringement, not trade mark infringement. Jeremy Phillips emphasised the degree of potential overlap which is available to products in the EU. Remedies were then discussed: Jeremy spoke of the successes of the Patents County Court, and Alain observed that interim injunctive relief was key. Posted by: Blog Administrator @ 14.45
Tags: EU design, Fordham 2013, US design,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA448
Design law: a Fordham Conference session
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| Trying to understand EU design law: before (left) and after (right) |
The session then turned to discussion. Myles Jelf (Bristows) noted that, with markedly different laws, the US and EU came to broadly the same conclusions as to the Apple/Samsung infringement issue. Annette Kur pointed out the flaw of EU design law, which measures the degree to which an earlier registered trade mark is unprotected against a later design application in terms of the test of design infringement, not trade mark infringement. Jeremy Phillips emphasised the degree of potential overlap which is available to products in the EU. Remedies were then discussed: Jeremy spoke of the successes of the Patents County Court, and Alain observed that interim injunctive relief was key. Posted by: Blog Administrator @ 14.45
Tags: EU design, Fordham 2013, US design,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA448
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