Life expectancy falls for Yemeni designs

Thanks to NJQ for pointing out the new design rules (trade marks are also modified) operative as of Tuesday 26th.  The design filing fees have increased slightly, from $170 to $200.  More significantly, the life of designs has been reduced from three five year terms (total 15 years) to a flat ten year period with no renewal.

Here's a link to their newsletter article.

Invalidity of international design registrations: OHIM speaks

The current online issue of OHIM's Alicante News features the helpful text below under the heading Invalidity of international design registrations:

"International registrations of designs under the Geneva Act of the Hague Agreement designating the European Union may be subject to invalidity proceedings before OHIM according to Article 15 Geneva Act and Article 106f Community Design Regulation (CDR).

[Class 99 note: Article 106f was one of the amendments to the original Regulation that was made in December 2006 to give effect to the EU's membership of Hague. It reads as follows: 

Invalidation of the effects of an international registration 

1. The effects of an international registration in the Community may be declared invalid partly or
in whole in accordance with the procedure in Titles VI and VII or by a Community design court
on the basis of a counterclaim in infringement proceedings.
2. Where the Office is aware of the invalidation, it shall notify it to the International Bureau].  

Since the accession of the European Union to The Hague Agreement in 2008, OHIM has received a number of applications for declaration of invalidity of International design registrations. The procedure is similar to invalidity proceedings concerning registered Community designs. The application must be submitted directly with OHIM. The language of proceedings must be the language of filing of the contested registration. Since the Geneva Act allows filing in English, French and Spanish, the invalidity application to OHIM can be submitted in any of these three languages. A fee of 350 Euro must be paid together with the application. The Invalidity Division in the Designs Service of OHIM is in charge of the proceedings.

An invalidity application against an International registration can only be based on the grounds which also apply against a registered Community design, namely the grounds of Article 25(1) CDR [which was also amended in December 2006 to make it Hague-compliant]. This means that errors in the registration such as an erroneous filing date or inconsistent views are no grounds for an invalidity attack [but will this stop those grounds being pleaded ...?].

Where the Invalidity Division finds the application admissible, it will forward it to the holder of the contested International registration. Where the holder needs to be represented before OHIM according to Article 77 CDR, the Invalidity Division will invite him/her to appoint a representative.

The examination of an invalidity application against an International registration is the same as for a registered Community design, namely OHIM will invite the parties, as often as necessary, to file observations, within a period to be fixed by the Office, on communications from the other parties or issued by itself.

However, a difference lies in the decision at the end of the proceedings: where the invalidity application is well founded, it is not the International registration as such which will be declared invalid but only its effects in the European Union. The effects of the International registration in other countries designated therein, if any, are not affected by the decision of OHIM [this resonates with the position concerning the EU's current travails over patent reform, as to whether an EU institution such as a unitary patent court could invalidate the effects of a European patent so far as it covered EPC territories outside the EU. It couldn't].

An applicant contesting an International registration enjoys the same remedies as any party to proceedings before OHIM, in particular they may lodge an appeal against a decision of the Invalidity Division and bring an action before the Court of Justice against a decision of OHIM’s Boards of Appeal .

Where the effects of an International registration in the European Union have been declared invalid by a final decision, OHIM will notify WIPO accordingly. There is no entry in the Register or the Bulletin of OHIM but invalidity decisions concerning International design registrations can be searched for in the case-law database of OHIM".

More calls for evidence: are they really needed?

A media release from the UK government's News Distribution Service this morning calls for more evidence on which it presumably proposes to base its policies.  The text reads, in relevant part:

"The Government today launched a call for evidence on how the UK intellectual property system can better support our globally successful design industry.

At an event hosted by the Design Council, Baroness Wilcox urged the UK’s design community to gather information and data on what makes our design industry tick and what Government can do to support innovation and growth. [As if the design community doesn't already have enough to do ... and they will be disheartened by the fact that in other areas of IP -- of which the most obvious is the extended term of copyright protection for sound recordings -- the government appears to fly in the face of the evidence it so greatly prizes]

The lack of evidence available on this innovative sector was highlighted by Professor Ian Hargreaves in his review of Intellectual Property and Growth. In its response, the Government committed to gaining a better understanding of whether the design rights system in the UK is geared to the needs of business. [If it seriously wants to gain a better understanding, it only has to tune in to ACID -- an effective mouthpiece for the concerns of designers and their businesses. Or does the taint of 'lobbynomics' bar any representative group from having its views, and its information, accepted?]

Design is important to the UK economy, with an estimated £33 billion invested in design and architectural services in 2008. But there are questions about whether the design industry is properly supported by the Intellectual Property system. [But there has never been any suggestion that the design industry has been properly supported by the design system for the same old reasons -- (i) design rights are too numerous and complex for most people to understand, (ii) most small businesses can't afford the financial and emotional cost of dealing with infringers in court and (iii) unlike most other countries in the EU, we don't have a law of unfair competition which enables smaller businesses to enjoy a measure of protection that does not depend on paying to register rights in advance and then finding that they're too narrow or enmeshed in legal technicalities that make it difficult even to predict the outcome of a dispute]

To help answer these questions, and properly target and inform policy change, the Government has today issued a 'call for evidence' in relation to the design sector and launched a supporting online questionnaire/survey aimed at business [whether through haste, negligence or poor eyesight, this blogger couldn't find a link to the supporting online questionnaire/survey. Can anyone oblige, please?].

[Minister for Intellectual Property Baroness Wilcox said ...]

... Baroness Wilcox announced the publication of the first phase of research into the use of design rights in the UK. The research shows that the most intensive spenders on design in the UK are business services, manufacturing and construction sectors. Relative to other countries in Europe the UK spends significantly on design related products and services [possibly because, without an unfair competition tort, the UK has to?]; but there is very low awareness of design rights. The research also found that registered design rights are used mainly in specific business sectors, such as furniture and clothing.

These reports are available via the IPO web-site www.ipo.gov.uk/pro-ipresearch/ipresearch-right/ipresearch-right-design".

Yesterday this blogger attended a presentation, "Better by Design: towards European Design Policy", which was promoted by the Associate Parliamentary Design & Innovation Group (APDIG). There were some very pleasant and well-chaired talks, followed by a well-managed question-and-answer session. The overall impression received was that people who talk about design, who discuss and analyse its policy, who argue that it should be appreciated and understood in the public private and public sectors and integrated into the educational curriculum, are a good deal happier and less stressed than the designers he comes across in a rather different world in which no-one talks about policy or flies off for chummy meetings in charming locations which are conducive to sharing thought, a sadder world in which some people create designs and try to commercialise them while others rip them off.

Apple's German injunction upheld

One of Class 99's favourite German judges, Johanna Brueckner-Hofmann in Dusseldorf, has held that Samsung's tablet computer was too close to Apple's Registered Community Design, thereby making the interlocutory injunction 'permanent' (although there are also substantive proceedings on foot in Dusseldorf).  According to the MSN News coverage, the evidence showed several other tablet computers on the market which were different enough to avoid infringement - the Apple design didn't monopolise tablet computers, as a whole, but Samsung's iPad killer was not different enough to avoid it. 

Samsung are reputedly going to appeal, but Brueckner-Hofmann has a lot of design judgments under her belt, so we shall see how keen the Appeal Court is to overturn her over the next year or so.  The Hague court, however, has taken a different view on the design, refusing an injunction on that basis (although it found an Apple patent infringed). 

Each of these courts only has jurisdiction for acts of local design infringement, so their judgments can coexist.  Various bloggers seem to be suggesting that parallel importers could therefore bring product from the Netherlands into Germany - but that certainly isn't my understanding - the goods in the Netherlands aren't in any way franked or licensed by Apple so I can't see how the "free movement of goods" doctrine is engaged.

As both Samsung and Apple are non-EU companies, absent a local entity to sue the Court with pan-EU jurisdiction would be the statutory default, Alicante Commercial Court.  Do any readers happen to know whether Apple are seeking a pan-EU injunction down there in Spain?

Class 99 poll avalanche rocks IPO (almost)

The result of Class 99's little poll (click here for background) will have come as a shock to very few people. The question which was posed to readers of this weblog was "Should the UK facilitate online filing of registered design applications? Responses were as follows:

• Of course it should! This is 2011, after all: 33 votes
• There are so few applications, it doesn't really matter: 1 vote
• Definitely not, I spend enough time online already: 0 votes

A more significant result was the receipt of this response from an unnamed correspondent within the UK's Intellectual Property Office:

"The IPO is committed to providing the best e-services to users. Whilst the recent focus has been on trade marks, work is underway to consider the options for updating and improving the systems that support UK design registration, including the introduction of an e-filing service. Views on the shape of the system will form part of a wider consultation on the registration and protection of designs to be launched later this year".

While this doesn't quite constitute the firm and irrevocable promise to introduce e-filing for designs in the UK the day after tomorrow, it does at least constitute a welcome step in the right direction.