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This article empirically examines the substantive decisions on all types of design rights from the courts of the 28 Member States since the entry into force of the Design Directive and the Design Regulation, up to and including August 2017. The article tests several hypotheses. Firstly, it uses descriptive statistics to examine claimants’ relative...
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... papers on designing circuits). [9] Patterns and motives of design protection; Registered community designs (RCDs) (Filippetti and D'Ippolito 2017) [41] Appropriation mechanisms; the role of open innovation (Teece 2018) [42] Appropriation mechanisms, the role of open innovation (Zobel, Lokshin et al. 2017) [43] Appropriation mechanisms, the role of open innovation (Holgersson, Granstrand et al. 2018) [44] Appropriation mechanisms, OI, ecosystems (Gallié and Legros 2012) [45] Appropriation; IP bundle (Herz and Mejer 2021) [46] Sectoral focus: automotive spare parts (Heikkila and Peltoniemi 2019) [47] Motives design protection; Product focus: sauna heaters (Church, Derclaye et al. 2021) [48] Legal focus; overlaps between laws (Church, Derclaye et al. 2019) [49] Legal focus; case law (Smyth 2012) [50] Legal focus; case law (Fjaellegaard, Beukel et al. 2019) [51] Designer focus (Heikkila 2019) [52] Designer focus: gender (Howell and Briscoe 2017) [53] Designer focus: education (Brem, Nylund et al. 2020) [54] Dominant design (Browder, Aldrich et al. 2019) [55] Maker movement (Schmiele 2013) [56] Internationalisation; IP infringement This led to 17 journal articles (see Table 2) that build the basis for this research endeavor. Inward and outward citations of these 17 articles led to additional relevant reports and grey literature. ...
... It is not uncommon to rely on other IPRs, such as trademarks, patents or copyright to protect designs. [48,49,[67][68][69] Factors that can play a role are such as awareness, the terms of protection or costs. [69] According to the results of a Public Consultation on the EU level and legal literature, the interaction between copyright and design law can be problematic. ...
... However, this criterion is differently interpreted across countries. [49] However, in case of a lack of a high degree of originality filing designs is superior, also because in the majority of cases it will be difficult to assert rights over designs abroad with copyright alone. [59] Furthermore, copyright protection is granted only following the decision of a Court. ...
Design in general is inextricably bound to a product and market perspective, however design rights only start to matter in the academic literature. The literature until now has somewhat progressed in understanding as to which and why firms use design rights for protection. To a lesser extent there is an understanding of why firms choose not to register designs. This is a conceptual paper based on a literature review and a small sample of qualitative interviews. Factors influencing design protection dynamics are grouped into four layers, legal and institutional factors, technological and sectoral factors, spatial and locational factors, and firm-related factors. What is most treated in the literature on design rights and their use is the influence of firm-internal factors like the perceived effectiveness of the protection and the costs associated with design rights. Another important factor in the literature is the skewed sectoral distribution which points to a strong influence of technological opportunities as relevant for the use of design rights. What has scarcely been treated in innovation economics but still seems relevant is the overlaps and trade-offs between different forms of protection, geographical scopes of protection and different laws, like the IP law and the unfair competition law.
... This paper explores EU protection only from the perspective of the CDR. 4 A designer can also opt for national design protection, but this is outside the scope of this paper. 5 Church et al. (2019). 6 Kur (2003), p. 55. 7 See for example, German Federal Supreme Court, April 7, 2011 -I ZR 56/09 -ICE, GRUR 2011, 1117; Bardhele Pagenberg IP Report 2011 V, 28; in a French case, the design of an umbrella was used in a photograph. ...
The paper considers three main questions: the legal status of digital designs from the perspective of EU design law, whether the protection is tied to the reproduction of physical products, and whether the scope of protection covers dimensional conversion such as using a 3D design in 2D form or vice versa. There are two sets of views regarding dimensional conversion: the “abstract” and the “concrete” view. These two different attitudes towards the scope of protection influence the manner in which the protectability of digital designs is assessed. In the “abstract” protection, it would not matter whether a product only exists as a digital image and not as a physical shape. In the “concrete” view, the protection of digital designs is more problematic, as the scope of protection is often tied to the reproduction of an actual physical product. The paper argues that, under CJEU jurisprudence and EUIPO practice, most of the open questions regarding the protection of digital designs and dimensional conversion can be considered as solved. The CJEU has chosen “abstract” protection over “concrete”, thus broadening the scope of protection at the EU level. This means that the digital use of non-digital designs can now be seen as infringing. As a consequence, in the future, right holders should put more care into evaluating the limitations and exceptions. The paper points this out with regard to the issues that are of relevance for the gaming industry, as this is where the use of digital designs is most versatile and relevant.
The Nordic countries adopted similar Designs Acts in the 1970s and these Acts remained in place until the European Union (EU)-harmonized design regime took over in the early 2000s. This chapter first describes the background to the pan-Nordic Acts and then moves on to point out how they generally failed to live up to the expectations of the legislators in providing a tailor made protection system for the ‘modern’ functional (‘Scandinavian’) designs that had emerged from the 1950s. Next, the chapter turns to the current protection in the Nordic countries under the EU regime. It is shown how designers in some of the Nordic countries have more or less abandoned the national system based on the national Design Acts and instead have turned to the EU Design Regulation. It is also argued that the national (Danish) courts are becoming better at following the guidance from the Court of Justice of the European Union and are coming out of the shadows of the pan-Nordic Acts and into the harmonized EU-based design system. The final part uses the Nordic experiences to reflect on the recommendations in the recent Evaluation of EU Legislation on Design Protection.
Australian laws relating to the protection of fashion design have been unfavourably compared with those of Europe. Some commentators have argued for the adoption of a European-style unregistered design right or a tort of unfair competition. These commentators argue that armed with these causes of action, courts could better enforce design rights which in turn would increase the welfare of consumers. This study counters these arguments by presenting a systematic empirical examination of fashion design cases pursued in Australian courts. Identifying 85 cases over 16 years (1 January 2004 – 1 January 2020), this study reveals that Australian court enforcement of rights is comparable to that found in similar European studies. This study finds that for both counterfeit and non-counterfeit copying cases, fashion designers (asserting trade, copyright or registered design rights) have these rights enforced the majority of the time. Therefore, additional causes of action (which incur heavy evidentiary costs) would be of limited benefit to potential plaintiffs. This article also discusses recent reviews of the Australian design eco-system conducted by IP Australia. These reviews include important survey evidence from Australian designers on the impediments to enforcement (typically high cost) and evidence from consumers as to how they value original design (highly price sensitive). The original empirical analysis in this study (in conjunction with IP Australia’s survey evidence) indicates that the majority of Australian designers do not pursue infringing copyists for economic reasons, and not for want of a cause of action.
Freedom of imitation, outside the boundaries of intellectual property protection, can be considered as a prerequisite for free competition in a free market economy. The rules on unfair competition should therefore not serve to extend exclusive rights beyond their scope and term of protection. On the other hand, regulations within national law that prohibit the unfair copying of products may be justified in order to avoid market failure, being directed towards the optimizing of fair competition among honest traders. The borderline between these two opposite positions is regulated with different approaches in the European countries. This article considers the extent to which the public interest in free competition and the protection of a trader against unfair competition function together in a complementary manner under Scandinavian legislation. In the early 1970s, the Scandinavian countries developed a distinctive approach to regulations on unfair competition under the Marketing Laws. This article undertakes an investigation of these regulations relating to the borderline between legitimate and unfair copying as of 2020, revealing the extent to which there is a unified approach to copying in Scandinavia. Differences between the regulations will have influence on the legal relationship and conflicts among traders operating in all three countries, while a unified Scandinavian approach could serve as a robust solution for navigating the borderline between legitimate and unfair copying. Such analysis might also shed light on how a Scandinavian approach fits into a broader European perspective on this borderline. Thus, the aim of this article is to analyze potential different approaches to the tension between the marketing rules outside the boundaries of intellectual property protection and the principle of legitimate copying. Examination of this borderline can be connected to how the trader’s investments and behaviour are balanced against a market-oriented approach to copying.
