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4 - EU Design Law: Transitioning Towards Coherence? Fifteen Years of National Case Law

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Published online by Cambridge University Press:  29 December 2020

Niklas Bruun
Affiliation:
Hanken School of Economics (Finland)
Graeme B. Dinwoodie
Affiliation:
Chicago-Kent College of Law
Marianne Levin
Affiliation:
Stockholm University Department of Law
Ansgar Ohly
Affiliation:
Ludwig Maximilian University of Munich Faculty of Law
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Summary

The Design Directive and Design Regulation2 (“EU design law”) are now almost twenty years old. Annette Kur was part of the drafting committee of the Max Planck proposal for an EU design law.3 The European Commission’s proposal for a legal protection of designs was close to the Max Planck draft for the most part,4 and the draft is also quite close to the actual texts of the directive and regulation.5 In assessing Annette’s many contributions it is therefore fitting to examine the impact of the Design Directive and Design Regulation. This chapter examines the case law of the twenty-eight EU Member States since the entry into force of the Design Directive and Design Regulation until August 2017, to see how countries have been transitioning from no design law (e.g. Greece) or from their old design law to the new EU design law and whether the law has achieved coherence over the first years it has been applied. Because space is limited, the chapter concentrates on one aspect, though arguably the most important (and definitely the most interpreted at national level), namely the notion of individual character and its corresponding use in infringement analysis. The chapter examines whether national courts have applied this concept and associated tests (mainly the concept of informed user) adequately or not and concludes that, overall, they have.6 Very few courts have misapplied the law, and with time the misapplications have decreased. Nonetheless, there are some courts that still misapply these notions, so the chapter proposes remedies to achieve full coherence.

Type
Chapter
Information
Transition and Coherence in Intellectual Property Law
Essays in Honour of Annette Kur
, pp. 56 - 67
Publisher: Cambridge University Press
Print publication year: 2021

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