Wednesday, 29 February 2012

USPTO to double design fees?

The US PTO is consulting on design fee increases. 
The effect of the proposed hikes would be to more than double the fees for filing a design patent application.  The proposals, here, involve whacking great 200%+ increases in the examination fees for all types of patent application, but designs are singled out for a further 200%+ increase in the search fee. 
Apparently, the changes are motivated by a desire for "a more sustainable funding model than it has had in the past to avoid disruptions in agency operations due to economic fluctuations".  But PTO stability has a price-tag for applicants and hence the innovative sector of the broader economy - won't higher prices contribute to the very economic fluctuations they are seeking to mitigate for themselves?

Tuesday, 28 February 2012

No more OHIM Bulletin Search

Strange changes are happening in OHIM's databases.  This posting concerns the Community Designs Bulletin, which records data on designs as they were at the point of registration.
It used to be searchable, either with a simple search or (via the site search) using Boolean searches (AND, OR etc).  The Boolean possibility disappeared some years ago, alas.  I noticed problems with the simple Bulletin search back in November 2011 and asked OHIM about them.  I have just had the reply: "as of the 2nd of February the functionality of searching within the RCD-Bulletin is not available anymore".  The search interface has accordingly disappeared.
You would hope this would not be a problem, because in its place OHIM advertise "New powerful solution for searching all OHIM resources: eSearch Plus".  However, so far as I can see, eSearch certainly does not search "all OHIM resources" - specifically, it does not search the Bulletin.
It does search the RCD-Online database.  However, that database appears only to capture the current state of the Register of Community Designs.  If a design has been transferred after registration, for instance, a search by original proprietor will miss it, whereas searching the Bulletin would have found it.  I have tested this.  So some functionality has definitely been lost.
I believe there are also problems with RCD-Online and the eSearch plus facility (which is only in beta at present).  I have asked OHIM for answers and will report the outcome in future postings.

Friday, 24 February 2012

Explanatory memo: can you help?

A very serious IP researcher has asked for some help. Can anyone oblige?  He writes:
"I was recently reading through some commentary you* wrote concerning the Design Regulation and Directive included in a book edited by Mario Franzosi. You and several of the authors cite an explanatory memorandum on the Directive and Regulation, and I can't seem to find it anywhere. By chance, do you have digital copies you could send me?"
The book in question, European Design Protection: commentary to directive and regulation proposals, was published in 1996 and cannot be said to represent current thinking on the legislation in question; it does however have some historical interest.  Back in the early 1990s, when the research and writing for this book were in full swing, the idea of electronic copies had scarcely permeated most areas of legal research and I was unaware that any such copy was available then. I certainly don't have one now and a gentle effort to locate an electronic copy of the explanatory memo with the aid of a well-known search engine proved fruitless.

So -- does any reader of this weblog have, or know of the existence of, an electronic copy which he or she can make available?

* As a point of historical accuracy, not to mention the right of attribution of authorship, the chapter which appears in my name was actually written by my friend and colleague Uma Suthersanen, though I did have the pleasure of giving her a small assist.

Friday, 17 February 2012

New compilation heading our way ...

My free copy, for inspection and review, has not yet arrived -- which is not surprising since it's not being published till May -- but publicity material for International Design Protection: A Global Handbook is already circulating.  Compiled by General Editor Clive Thorne (RPC) and published by Globe Business Publishing, it has a warm, glowing orange-y brown cover and is planned to retail at £140.  This book is a sister to the same publishers' Intellectual Property in the Life Sciences (here), International Patent Litigation (here) and International Copyright Law (here).

What about this book?  As the publishers explain:
"Valuable designs have underpinned much of the technological and industrial innovation that has taken place in recent years. Indeed, given the extent to which economic growth is driven by these advancements and the ever-increasing financial benefits of holding exclusive exploitation rights for the most significant designs, the importance of protecting such designs cannot be understated.

International Design Protection is an international compendium of design law in over 30 major jurisdictions. It covers the applicability of registered and unregistered design rights and ancillary protection by copyright and trademarks. It also deals with the practicalities of design protections and the enforcement of design rights, including discussion of qualification for protection, infringement, design infringement litigation, licensing and exploitation.

Written by a team of leading specialists in design law, the book is a fully updated and straightforward guide to navigating the complex and fascinating field of international industrial design law".
From the list of contributors and their firms here, one can identify some well-known personalities and respected commentators.  From the absence of certain countries which one might have expected in a 30-jurisdictional compendium (eg China, Korea, Spain, United Kingdom), plus the appearance of four separate contributions for the United States, this looks like one of those pay-to-write books which contributors use as impressive business cards -- but that need not detract from the quality of individual contributions or the utility of the book as a whole.  That, however, is a matter for the post-publication review to decide.

ISBN: 9781905783755. Book's web page here.

Celaya ruling makes things easier for RCD plaintiffs

In November 2011 Class 99 reported on the Opinion of the Advocate General in a case referred to the Court of Justice of the European Union from the Spanish Community Trade Mark Court in Alicante, Case C‑488/10 Celaya Emparanza y Galdos Internacional SA v Proyectos Integrales de Balizamientos SL.

The Court of Justice has now given its judgment. It confirmed yesterday that a defendant in registered Community design infringement proceedings cannot rely on the fact that the product he manufactures is in accordance with his own Community design registration, if (i) his product falls within the definition of an infringing product and (ii) his registered Community design is a later right than that of the plaintiff, even if (iii) the plaintiff has not applied to cancel his later registration.  The defendant's intention is also irrelevant to whether he is an infringer.

Tuesday, 14 February 2012

US spare parts design legislation - again

Déjà vu ain't what it used to be .... a right to repair bill has once more been introduced into the US House of Representatives.  It is known as the “Promoting Automotive Repair, Trade, and Sales” (PARTS) Act, HR 3839 (IH).  Catchy, huh?  The full text is here.
Sponsoring Representative Zoe Lofgren, whose preternaturally Sisyphean patience you have to admire if nothing else, has been trying to get something like this through since at least 2003 as is shown on her record.  We reported on the last or last-but-one attempt back here, in 2010.  Will this push succeed where all others failed?  Comments from the US welcome.
Briefly, the Bill would create an EU-style right for third parties to make, import, sell and use spare parts without infringing design patents.  However, unlike the EU, it would give the automakers a 30 month exclusivity period before selling and using the parts became legal.  That is a lot less than the five year exclusivity period you get under UK Unregistered Design Right law, but most parts aren't protected by those rights anyway because of the UK's "must-fit" and "must-match" exclusions. 
30 months is probably economically insignificant to the automakers - a small proportion of the economic life of car models and design patents, and nowadays most cars (yes, even American ones) don't start to fail that soon, so we are talking only about crash repairs here.  But something like that might be the starting point for a compromise equally unpalatable to both sides and therefore perhaps acceptable.  If it can be sold in the US, perhaps it could be used as an icebreaker for the long-stalled EU spare part negotiations.  But don't hold your breaths!
If you feel passionately pro-the bill, here's a link to the Quality Parts Coalition's Facebook petition.  Or if your sympathies lie with Detroit (and it is certainly in need of sympathy), here is a link to some comments by Kelly Burris of Brinks Hofer about the impact on automakers.

Malaysia simplifies design filing

More legislative changes - this time in Malaysia, operative as of tomorrow.  Thanks to Kass International for news of these - here is a link to their article.
Nothing to get tremendously excited about apparently - these are formalities matters - but they all (other than the fee hike) make life easier for design filers and are therefore welcome. 

My summary of the Kass article:
  • Higher fees!
  • e-Filing
  • Only one copy instead of 6
  • Power of Attorney system to be simplified to allow more to be done on agent's signature.

Monday, 13 February 2012

Designs on the move in Norway

And thanks once more to Bryn Aarflot for their news that the Norwegian design law was amended in 2010 to allow registration of moving designs.  That follows our news update from Korea that they will permit animation designs in future.
OHIM have permitted moving image Community designs for some time - if you can convey the motion in seven images or fewer.  For a rather old example, see RCD 000032602-0020.

Trip-Trap-Trolls - Norway upholds copyright in chair

Regular readers will remember that some time ago Class 99 veteran Henning Hartwig covered the German infringement decision on the Tripp Trapp adjustable high chair (depicted), created four decades ago. 
We are grateful to the invaluable International Law Office newsletter for bringing our attention to the article by Celine Varmann Jørgensen of Bryn Aarflot reporting that the Norwegian Appeal Court has also found the copyright in the chair to exist and be infringed, overturning the first instance decision.  The defendant, Trumf, has apparently appealed on to the Supreme Court.  We shall bring you the result when we get it.

Sunday, 5 February 2012

Almost true -- but still welcome -- news of OHIM recordals

You may have missed this news -- as I did -- but it's not a rumour, it's almost absolutely true. The design bit of the Office for Harmonisation in the Internal Market (OHIM) has finally confessed:
"As of 10 January 2012, recordals concerning Registered Community Designs (entries made in the Register, renewals and information on expired registrations, Restitutio in Integrum) will be published on a daily basis in the RCD Bulletin as opposed to the once weekly Friday publication that has taken place up until now.

With this change, all items for publication relating to CTMs and RCDs are now published on a daily basis".
More information can be found on the OHIM website here. Visit it and you will find that the truth is not quite as exciting: recordals are only published each working day, which means that you can forget about getting your favourite online publication on weekends and holidays. Sorry!

Hands off our design


Back in sunnier times, in June of last year to be precise, Class 99 brought its readers news of the HandsOffMyDesign competition which the Office for Harmonisation in the Internal Market (OHIM) has been running in order to promote the message that copying and counterfeiting is bad and should be avoided.  We now know the results of this competition. As OHIM explains:
"Winners named in "HandsOffMyDesign" Competition

The winning entries in the "HandsOffMyDesign" competition received awards in a special ceremony in the European Parliament today. Almost 60 student and professional designers took part in the contest, which was designed to generate high-impact “guerrilla or viral” marketing tools with the potential to capture the imagination of users of social networking tools on the Internet.

The event ... was organised by the European Observatory on Counterfeiting and Piracy and DG Internal Market and Services with the support of OHIM and endorsed by the Cumulus International Association of Universities and Colleges of Art, Design and Media. The winners were selected by an international panel including independent figures from the design industry and academia as well the stakeholders of the Observatory.

OHIM President António Campinos said that one of the major challenges ahead for the EU was to determine how to protect the rights of creative people while maintaining the free exchange of information on the Internet:
“In the digital era, we need to find a fair way to remunerate artists, musicians, authors and film-makers. This competition represents the personal perspectives from designers working in every part of Europe. Whether or not everyone agrees with the messages, I am confident they will play a valuable role in helping to stimulate the kind of constructive debate on this issue that we need in the EU".
... The winning participants, divided into two categories – one for design students and one for professional designers, were awarded prizes of €8,000 (1st prize), €2,500 (2nd prize) and €1,500 (3rd prize).

Design students:
1st Prize: Julien Moreau, from the ECV Atlantique school in France.
2nd Prize: Nejc Levstik, from the Academy of theatre, radio, film and television in Slovenia.
3rd Prize: Lauri Särak, Daniel Levi Viinalass and Elmo Soomets, from the Tartu Art College in Estonia.

Professional designers:
1st Prize: Gergely Szőnyi and Tamás Helényi from Green Lake Pictures in Hungary.
2nd Prize: Christoph Brehme of German nationality from Piopictures in Italy.
3rd Prize: Dimitris Haidas from dhaidas in Greece.

For more information and to view the videos click here".
Thanks go to Sally Cooper for drawing our attention to this news.

Thursday, 2 February 2012

"Have you ever wanted to get inside David Beckham's pants?"

In the days before Beckham:
Arsenal's legendary Alex
James, wearing his own
choice of famously long
shorts ...
Listeners to BBC's Radio Five, sleepily turning on their radios this morning, might have been startled into full wakefulness -- as indeed this blogger was -- by the question posed by the title of this blog post. The question was not however directed at sufferers from beckamphilia. Rather, it was a literal indication that a range of David Beckham underwear has just been launched, amid great media excitement and the usual hype. According to this morning's Independent:
"For a man so often seen modelling pants David Beckham was noticeably shy at the launch of his own range of underwear yesterday. Hundreds of fans hoping to catch a glimpse of "Goldenballs", as the footballer is known to his wife, had to make do with posters and nine-foot-tall silver statues. ... Putting his name to pants was perhaps a logical step for Beckham, the footballer, model and now hosier. His wife has put her name to an award-winning label and almost sold out of her second line when it launched earlier this week.

In a simple colour palette of grey, black and white, the nine no-frills cotton designs (which also include pyjama bottoms and vests) have a classic, sporty feel but there's none of the hi-tech fabric that Beckham will be more used to wearing in his day job. David has high ambitions for his brand. "I've been around for 36 years, I've seen my fair share of underwear," he said at a press conference. "I'd love to be as big as Calvin Klein."

The clamouring crowds that have become a familiar sight outside H&M on launch days were replaced by 300 people queuing patiently to get their hands on Beckham's underwear before today's global launch. ...

Matt Adams, 23, a graphic designer, and Leah Hummerston, 23, a fashion PR assistant, both professed their love for the star. "He's a massive celebrity and incredibly talented but seems humble with it", said Matt. "He's not just a successful businessman, he's a brand. I'd still buy H&M anyway because it's reasonably priced." Leah added: "It's more tongue-in-cheek than serious." ... ".
According to the discussion on the Five Live Breakfast programme, Beckham is reputed to have designed the underwear himself. The Beckhams appear to be remarkably talented in this sphere of activity, since David's wife, one-time Spice Girl and model Victoria, is also described as a designer in her Wikipedia entry.

What interests this blogger is the point at which design and brand meet and, it seems, merge.  It may well be that the Beckhams actually perform acts of creative design, possessing the necessary skills to execute the designs which they have conceived.  At a more distant level, they may have secured the services of amanuenses who put into visual form the notions which the Beckhams explain to them. More distantly still, they may simply be shown a range of products independently designed by third parties, from which they exercise their aesthetic and/or commercial judgment in determining which deserve the accolade of being sold under one of the Beckham brand names.

In commercial terms it may not matter which of these procedures has resulted in  new pair of pants, a dress or anything else appearing on the shelves and websites of retail operations.  In legal terms, it can make quite a difference, though, as the securing of interests of brand owners against independent designers, the possibility of moral rights issues where copyright is involved and other related issues must be addressed.