10 years DDW A Hip Hip Hurrah for Designer s Rights? Dutch Design Week Eindhoven, 25 oktober 2011 Gino van Roeyen

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Merilyn Amelia Golden
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1 10 years DDW A Hip Hip Hurrah for Designer s Rights?

2 Designer s Rights WHAT S INVOLVED? INSPIRATION CREATIVITY TALENT IDEAS INNOVATION PASSION CONFIDENCE BUSINESS ORIGINALITY INTEGRITY EXPERIENCE RESPECT REPUTATION

3 Protection against copycats and lookalikes Grant of intellectual property rights (IP) with regard to a particular design IP entitles owner to forbid straightforward copies and eventually lookalikes of said design Enforcement of IP requires in a lot of cases ultimately proceedings before a court

forbid straightforward copies and eventually lookalikes of said design

4 IP protection in the Netherlands for design in the year 2001 (1) basic principle (imitation is allowed) Freedom to give products the best possible quality and usefulness. basic exception (imitation is not allowed) Imitator had a possibility to design a product otherwise, without harming the quality and usefulness of the product, but didn t take that possibility and thus causes confusion as to the origin of the products at the public.

basic exception (imitation is not allowed) Imitator had a possibility to design a product otherwise, without

5 IP protection in the Netherlands for design in the year 2001 (2) possible effects on the design of products products design are either: * truly original (not an imitation at all) or * imitations of existing products design, but deviant on design parts that are not decisive for a products quality or usefulness

original (not an imitation at all) or * imitations of existing products

6 IP protection in the Netherlands for design in the year 2001 (3) What about IP especially for design in 2001? * Benelux registered design right * international registration for a registered design right * protection maximum 25 years * only available for products with a new design and an own character * apparently found not attractive by design community, because of relatively high costs (1 registration for 1 design) and exclusion of protection under tort law

25 years * only available for products with a new design and an own character * apparently found not attractive by

7 IP protection in the Netherlands for design in the year 2001 (4) patent law => only technical inventions (roughly speaking) trademark law => product shapes or packaging can be registered as a trade mark, only if they are distinctive (public needs to consider them as signs that communicate origin of the product) => excluded are shapes that are necessary to obtain a technical result

a trade mark, only if they are distinctive (public needs to consider them as signs that

8 IP protection in the Netherlands for design in the year 2001 (5) copyright => creation (design) which is original and bears the personal stamp of the maker (low threshold) => covers industrial design => no registration needed ( free ) => term of protection: until 70 years after death of maker

stamp of the maker (low threshold) => covers industrial design => no

9 IP protection in the Netherlands for design in the year 2011 (1) IP landscape for design has not dramatically changed, but a few buts designs can be registered EU wide (one registration) short term EU wide protection (3 years) for unregistered designs registered design also susceptible for tort law protection

registered EU wide (one registration) short term EU wide protection (3 years)

10 IP protection in the Netherlands for design in the year 2011 (2) Litigation incentives to enforce IP for design: 1. full procedural cost compensation (winner takes it all, loser pays it all) 2. seizure of documents regarding infringement 3. ex parte proceedings (injuctions against infringer without defendant being heard Further discouragement of straightforward copying of and freeriding on protected design

seizure of documents regarding infringement 3.

11 DDW Designs that went to court (1) If my research didn t fail, almost:

12 DDW Designs that went to court (2) District Court Den Haag, 10 december 2007, Impliva v Senz Umbrellas Iten 90 Senz 2006( DDA 2007) Impliva 2007 Although there were earlier asymmetric umbrella's on the market -at least one for sure- they were shaped considerably different than varieties 1 and 2 of the Registered Community Design of Senz.

earlier asymmetric umbrella's on the market -at least one for sure- they were shaped

13 DDW Designs that almost went to court (1)

14 Dutch design that almost went to court (2) Vogue 1940 Naked Alphabet Anthon Beeke 1970 Vanessa Beecroft for Louis Vuitton 2007

15 Honours to the contributors of the DDW! high level of originality... no copycats or freeriders... almost no disputes and/or laissez faire laissez aller mentality... no lawyer s paradise... financial means (different priorities)...

.. almost no disputes and/or laissez faire laissez aller

16 Court cases related to Dutch Design (1) Presiding judge, District Court Alkmaar, 20 februari 2007, Sloophout Eek despite the more or less required form of the objects concerned and the freedom of anyone to use scrap wood as a material for those objects, Eek has unmistakebly left his personal stamp on these objects. He has done so by specifically arranging the used scrap wood in a certain way with the existing color shades or shades that were applied by him and choosing a certain production process and certain auxiliary materials. Eek Esfera Esfera

left his personal stamp on these objects.

17 Court cases related to Dutch Design (2) Presiding judge, District Court Haarlem, 14 december 2007, Wonders v Loods 5 Marcel Wanders (Wonders) Big Shadow Loods 5 Rosan that the Big Shadow Lamp is qualified for copyright protection and that Wonders is the copyright owner.

(Wonders) Big Shadow Loods 5 Rosan that the Big Shadow Lamp is

18 Court cases related to Dutch Design (3) District Court Haarlem 16 december 2008 Rhombus (4udesigned) Richard Hutten (Dandelion for Moooi) Sixties 1988

19 Banning Advocaten N.V. Statenlaan LA s-hertogenbosch T: F: E: g.vanroeyen@banning.nl

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