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    WIPO Design Treaty Proposal Still On Horizon; Key Points Bared

    Published on 15 March 2012 @ 8:27 pm

    By for Intellectual Property Watch

    Members of the World Intellectual Property Organization (WIPO) are working to stage a diplomatic conference on the adoption of a new industrial design treaty at the earliest opportunity. The treaty, at the minimum, could harmonise certain aspects in design law, an area in intellectual property marked by stark differences in national procedures.

    The target to have a diplomatic conference as outlined in the WIPO program and budget for 2012-2013, however, can be met only if “sufficient progress” is made on the preparation of the proposed design treaty, Marcus Höpperger, WIPO director of trademark and design law division, told Intellectual Property Watch in a recent interview.

    “Where we stand now is we already have a set of draft provisions in a two-tier structure,” Höpperger said, referring to draft articles and draft rules.

    Despite having a target of a diplomatic conference – the highest level of negotiations at WIPO – for the proposed treaty, Höpperger said that in reality it remains difficult to gauge the speed of the process of turning what have been slow-moving discussions into a treaty.

    “It is also a political process and everything has to fall into place. But so far nobody [no country] has come out and said we disagree with the idea of a treaty – although some have reserves as regards the timing,” Höpperger said.

    An industrial design “constitutes the ornamental or aesthetic aspect of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color,” according to WIPO.

    Design laws vary from one country to another, despite it being covered by international treaties.

    The treaty for industrial protection, the Paris Convention for the Protection of Industrial Property (Article 5 quinquies) asks member states to protect industrial designs but gives no details on the subject and duration of protection.

    The World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) (Articles 25 and 26) sets protection for designs that are new or original and prescribes a duration of 10 years. Under TRIPS, member states can set exceptions and limitations for design protection, only in special cases.

    The Berne Convention for the Protection of Literary and Artistic Works, the international agreement governing copyright, also lists works of applied art as a category of works eligible for protection.

    In Europe, a design can be protected against imitation under copyright through national copyright laws; trademark law through the Trademark Directive and Community Trademark Regulations; industrial design law through the Community Design Regulations; and unfair competition law.

    Under the EU design law, a design must be novel and have individual character. Registered design has a term of protection of five years with the possibility of extending it to a maximum of 25 years, while unregistered community design has a protection against copying for three years.

    In the US, a design can also be protected through copyright, trademark and patent law. A design patent protection is given to new and non-obvious ornamental designs with the applicant required to show that the design is not functional. Aside from this, the US has the Vessel Hull Design Protection Act that protects design of boat hulls.

    A Logical Development

    Marshall Leaffer, an intellectual property law lecturer at the Maurer School of Law at Indiana University (US), said the design treaty is “not critical but will be helpful.”

    “The cost of filing for world wide IP rights in patents, trademarks, and design is an exceedingly expensive proposition,” Leaffer said. “The treaty is a logical and useful development in the facilitation of filing for design rights world-wide.”

    Design is seen as a promising area in intellectual property as activities in this field remain low, particularly in the area of international application and with most of the activities are still concentrated in a few countries in Europe and in the United States. The rest of the world, even China, is yet to be very active in filing international design applications.

    To illustrate, the number of design applications filed under the Hague Agreement Concerning the International Registration of Industrial Design last year stood at 2,521, a low compared to the 42,270 applications filed under the Madrid international trademark system and to the 181,900 applications filed under the Patent Cooperation Treaty (PCT) for the same period. But each design application can seek protection for more than one design.

    According to the latest available data from WIPO, countries with the most international design applications last year were Germany, Switzerland, the US, France, Netherlands, and Italy.

    The Hague Agreement which is administered by WIPO is a system for international registration of industrial designs. It was later updated by the Geneva Act. Under the agreement, a design must be protected for at least 15 years. The Hague Agreement has 60 member states and intergovernmental organisations to date.

    WIPO also manages the PCT and the Madrid filing systems.

    Focus of WIPO Discussions

    At this stage, Hopperger said, the ongoing discussions are mostly about procedures. They do not touch on complicated areas such as the subject of protection; whether cumulative protection should apply to design or whether a design can be protected by other intellectual property tools such as copyright or patent; duration of protection; and ownership for commissioned or work-for-hire works. For all of these, it is most likely that countries will continue to be guided by their own design laws.

    “The [proposed] design treaty is not about forcing countries to change their systems or to introduce another system. It’s more of trying to identify areas where you can introduce certain harmonisation and simplification,” Höpperger said. As proof of this, he said the proposed treaty carries the working title of “Treaty on the Work of Design Law and Practice.”

    Once successfully turned into a treaty, it will follow earlier treaties that touch on procedural issues such as the Singapore Treaty of 2006 and the Patent Law Treaty of 2000, which have helped streamline the application process and harmonised formalities to reduce the costs for applicants and right holders.

    The most sensitive area in the ongoing discussions is the definition of grace period or the allowance for disclosure prior to the filing of application. At present, grace period is anywhere from six months to 12 months.

    “I think everybody is happy with the idea of grace period, the question is how long. We are in between six months or 12 months. It would be preferable to agree on a uniform standard although those with 12 months don’t want to go back to six months and those with six months do not necessarily not want to go to 12 months,” Höpperger said.

    The rest of the provisions being discussed in the proposed design treaty concern formalities and procedures such as: filing date requirement, which is the basis in determining novelty and grace period; creating a standard for applications with multiple designs; and creating a uniform standard in showing the design in the application.

    “Obviously the national differences persist to some degree, but it is also thought that once you create a standard that people [can] adhere to, even though it is a minimum standard, over time that will bring people together and it will become more aligned in a way,” Höpperger said.

    During the last session of the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications in February, it was agreed to have an impact study on the costs and effects of such a treaty (IPW, Trademarks/Geographical Indications/Domains, 4 February 2012).

    “They can make informed decisions based on the study,” said Höpperger. “Whether it has a bearing [on the proposed design treaty] I don’t know, but it was requested so we are preparing the study.”

    Maricel Estavillo, an intern at Intellectual Property Watch, is an LL.M. in Intellectual Property and Competition Law Candidate at the Munich Intellectual Property Law Center (MIPLC). A former business journalist in Manila, Philippines, she is currently working on research on copyright in digital media for her Master’s thesis.

    Maricel Estavillo may be reached at maricelestavillo@gmail.com.

     

    Comments

    1. US Congress Passes Act Implementing Patent Law Treaties | Intellectual Property Watch says:

      [...] WIPO members have been negotiating toward a new design treaty (IPW, WIPO, 15 March 2012). Related [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

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    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

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    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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