Last year, the EU Court passed an important ruling on the relationship between design law and copyright. It was indicated that copyright does not always provide the same protection as a design right. Copyright can only be invoked if an intellectual creation is concerned. This seems to put an end to the ultra-low threshold that was applicable in the Netherlands and with this ruling the importance of claiming design through a design registration has increased considerably. »design-law
Two requirements have to be met to claim design protection of a product through a registered design. The design must be new and have its individual character. A product has individual character if it makes a different overall impression from already existing designs. The freedom of the designer plays a role in this (designs may vary a lot or a little). If that freedom is very limited (for example due to technical requirements), smaller differences will be sufficient for a different general impression. The basic shape for the Porsche 911 dates from 1963. Almost every year Porsche makes slight design modifications, for which design rights are claimed. Is this possible? »design-law
Petsbelle designs, produces and markets scratching posts. In order to protect the design of its products, the company applies for European design protection. There are two important requirements for a European design registration. A model must be novel and have its own character. Novelty is often a problem. Many companies first want to test the waters before incurring the costs to claim their rights. In the European Union it is therefore possible to claim design rights up to twelve months after first disclosure. However this grace term is hard. »design-law
Many companies register the design of new products in the EU with a Community Design. This allows counterfeiting to be tackled easily and the company maintains a monopoly on this design. However not every design can be claimed just like that. The design must be novel and have its own character (something creative). However, this requirement of novelty applies worldwide and the authorities in the EU do not actively check this. So the applicant should always check first with the design team (or the manufacturer) if the design is actually new. If this is not the case, third parties can easily cancel the rights. »design-law
The outer appearance of a product can be claimed with a registered design. There are two requirements for this. The design must be novel and have an individual character. The requirement of novelty often forms a problem. At the product launch, it is not immediately clear whether the product will become a success. That is why in the EU one can still apply for a registered design for up to 12 months after the first publication, but this is a very tough deadline. »design-law
MENTOS has been selling chewing gum under the name MENTOS PURE FRESH for several years. In order to protect her rights MENTOS has registered the following trademarks: the logo MENTOS PURE FRESH, the logo MENTOS PURE FRESH 3 and a figurative depiction of the word PURE.
Defendant sells chewing gum under the trademark DENTYNE PURE and has registered its logo as a trademark.
Infringement or not?