|Articolo del 08/06/2009||Autore Avv. Francesca Caricato||Altri articoli dell'autore|
The protection of ‘indutrial design’ comes from a combination between the shape and the way of working of a product.
A personal interpretation of such a combination becomes a new way of experiencing or enjoying the product.
As WIPO correctly points out ‘industrial design’ is not the product itself, but the design applied or embodied in the product.
When a mass product is capable to catch the attention of somebody who knows the market or a market operator with respect than a previous creation, there industrial design is recognizable.
Indonesian design law agrees to this approach. Nevertheless this result has been reached just nine years now, since before the Law no.31/2000 Indonesia granted design creations by copyright protection.
While the Country has been a member of the Hague Convention since 1950, this Convention was never ratified. Now Law no. 31/2000 provides for protection of creation of shape, configuration or composition of lines or colours or a combination of both three/two dimensional form that produces an aesthetic impression and that may be used for making a product , goods, industrial commodities or handicraft items.
This reference to handicraft winks to the protection of folklore, normally granted by copyright. Nevertheless, it is provided also in the Italian legislation at art. 31 of Law (D. Lgs.) 30/2005.
It seems contrary to the essence of the industrial design, which is related to mass products, but it was just the way how it was born.
By the way, copyright was difficult to enforce and this law 31/2000 provided new rules, which are common to Italian and European legislation.
First of all a registration is granted to designs which are novel , that is designs not published or used anywhere before the priority (filing) date. No substantive examination is provided. That means that if nobody raises an objection within three months from the publishing of the demand, the design is granted. Another requirement is the different aesthetic impression among others.
This system has the advantage to grant the right very quickly, but is evil to overseas rights holders who have to fight against local infringers by taking legal action in the place of the infringer’s domicile.
It is possible, as in Italy, to act without a previous warning, but it is not allowed a counter-action in defence for revocation of the design.
A separate action must be filed with the danger of different decisions concerning the same rights.
Italy and European Union grant a design protection where the design is novel and has an individual character too. That is when it differs from previous similar products. Indonesian wording of the law does not clarify if the novelty must be related to the same previous products or only to similar previous products of the same field like in the European Union and in Japan.
Very interesting is the industrial applicability approach, which is interpreted by the Indonesian Court as the capability of the product to be mass manufactured. This approach has the purpose to distinguish the protection by copyright and by design and it is not faraway from european way to look at the design.
Differently from Europe and Italy, in Indonesia design protection lasts for 10 years and no renewal is provided.
In the European Union, instead, the design protection is granted for five years and can be renewed till twenty-five years. Applying for a Community design gives a unique title valid in the whole European Union. This is different from international design registration, which needs to be granted State by state. Nonetheless, by an international demand it is allowed protection either in the European Union by asking for a Community registration, and not a single registration in every country.
In Italy and in Europe a very creative design might enjoy an additional protection as copyright.
The European system carries out also a protection for a non - registered design, which lasts for three years, but it is difficult to be enforced.
Generally speaking, enforcement of registered design rights can be obtained in Europe by interim measures, customary proceedings and ordinary proceedings before civil and criminal Courts.
Avv. Francesca Caricato
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