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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.
The overlap between trademark law and copyright or design law has grown with the extension of trademark protection for subject matter that was traditionally protected only by copyright and/or design law. This extension has been triggered not only by the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement (Article 15(1)) but also by prior national and regional initiatives (e.g., Article 2 of the 1988 EU Trademark Directive). The overlap thus covers slogans and titles; two-dimensional artistic works (figurative marks such as color combinations, logos, graphical user interfaces, or computer visual displays); musical works (sound marks); and three-dimensional artistic works (shape marks).
Protecting designs is complex and diverse; it involves deciding whether to protect them by design law, copyright law, or by both laws. A single protection may be under- or overprotective but two or more can be overprotective if there are no rules regulating the overlap. Legal systems in Europe and abroad have struggled to find the most adequate solution to this problem. This book traces the history of the design/copyright interface of fifteen countries, selected for their diversity in the way they dealt with the interface. It examines how these countries have coped with the problems engendered by the interface, the rules they applied to it over time and the reasons for legislative changes. This analysis reveals the most appropriate rules to regulate the interface at EU and global level and will appeal to academics, practising lawyers, judges, students and policymakers all over the world.
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