Unit3 RightsinDesign

INTELLECTUAL PROPERTY
LAW
RIGHTS IN DESIGNS
Content
1. Design Right
2. Registered designs
http://fpt.edu.vn 06/06/23 2
1. Design Rights
• ‘Design’ means the design of any aspect of the shape or configuration

(whether internal or external) of the whole or part of an article.
1. Design Rights
• What is protected by design rights? – Tangible three-dimensional objects

• Requirement for being protected: - Being original
- Not commonplace
1. Design Rights
• Exceptions to design right:

1) Surface decoration;
2) A method or principle of construction;
3) The ‘must fit’ exception
4) The “must match” exception
1. Design Rights
Designer Owner
A person who actually creates a The designer is also the owner of the
design. design right unless the design was
produced by an employee or under a
commission, when the employer or
the person or company placing the
commission own the rights
1. Design Rights
Primary infringement Secondary infringement

• Copying the design without the Infringement by trading:
owner’s permission -Dealing with the infringing copy;
-For commercial purpose;
-Know or have reason to know that
the article is an infringement of
design right.
1. Design Rights
Exceptions to infringement:
-For the last 5 years, the owner cannot stop competitors from manufacturing
articles to the design, because a license of right is available under 1988 Act.
-Use by the Crown
2. Registered design
• ‘Design’ means the appearance of the whole or a part of a product resulting

from the features of, in particular, the lines, contour, colours, shape, texture
and/or materials of the product itself and/or its ornamentation.
• A design can be two or three dimensional, it can be whole of party of a
product.
• Community registered design
2. Registered design under Vietnamese IP Law:
Industrial Design
• Appearance of a product embodied by three-dimensional
configurations, lines, colors, or a combination of these
elements
• To be registrable:
1) Novelty: It must be new throughout the World. A design is new if no
identical design or no design whose features differ only in immaterial
details has been made available to the public before the relevant date
2) Individual character: a design has individual character if the overall
impression it produces on the informed user differs from the overall
impression produced on such a user by any design which has been made
available to the public before the relevant date.
2. Industrial Design (VN law)
• To be registrable:
1) Novelty: Significantly differs from other industrial designs that are already
publicly disclosed inside or outside the country before the filing date or
priority date
2) Creativity: based on industrial designs already publicly disclosed before the
filing date or priority date, it cannot be easily created by a person with
average knowledge in the art
3) Industrial applicability: it can be used as a model for mass manufacture of
products by industrial or handicraft methods
Exclusions from design registration

1)a feature of a product is dictated by its function;
2)a feature which allows a product to fit to another product
(similar to Vietnamese IP law)
Application for registration :

-Representation of design;
-Filling application form;
-Paying fee
-Opposition
Group discussion
Read the case
Kastenholz, v Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM), Qwatchme A/S [2013] EUECJ T-68/11 (06
June 2013)
Was the contested design identical with the earlier designs?
Duration of protection:
-Initial registration period: 05 years
-Four subsequent periods: 20 years
Compare to Vietnamese law on industrial designs: Industrial design

registrations are effective from issuing date to the end of 5 years from the
filing date, may be extended for 2 consecutive periods of 5 years.
• Industrial design protection is limited to the territory of the country or the

region where protection is sought and granted.
• Hague system for the international registration of industrial design
2. Registered Design
Designer Owner
• A person who actually creates a - In the course of employment
registered design - Under commission
• Infringement: without the owner’s consent

- Using the registered design or a design being substantially similar to the
registered design constitutes infringement.
- Making, offering, putting on the market, importing or exporting, or to
stocking the infringing products which made for such a purpose
PMS International Group Plc v Magmatic Ltd [2016] UKSC 12 (9 March

2016):
Two of those registered designs Alleged “Kiddee Case”
included CADs
Group discussion
Applying design law in the creative content industry to solve problems and
cases
Overlap
• Copyright
• Design right
• Registered Design
Review on Designs
1. Protection of design rights and registered design

2. Overlap between copyright, design rights and registered design
3. Ownership of design rights and registered design
Thank you for your attention
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INTELLECTUAL PROPERTY

• ‘Design’ means the design of any aspect of the shape or configuration

• What is protected by design rights? – Tangible three-dimensional objects

• Exceptions to design right:

Primary infringement Secondary infringement

• ‘Design’ means the appearance of the whole or a part of a product resulting

Exclusions from design registration

Application for registration :

Compare to Vietnamese law on industrial designs: Industrial design

• Industrial design protection is limited to the territory of the country or the

• Infringement: without the owner’s consent

PMS International Group Plc v Magmatic Ltd [2016] UKSC 12 (9 March

1. Protection of design rights and registered design

Questions & Answers

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