Despite the pandemic intellectual property is on the rise for 2020

WIPO has published its annual World Intellectual Property Indicators Report for 2020.

Despite the pandemic and all accompanying economic problems, the data clearly shows that the interest in intellectual property rights is rising on a global basis.

According to the report, there is a 13,7% increase in trademark applications for 2020, a 1,6% increase in patents applications, 2% for designs, and 5,1% for plant varieties.

A number of patent applications:

Trademark applications trend 2006 – 2020:

Design application trend 2006 – 2020:

Design applications by country:

Source: WIPO.

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Ferrari FXX K design elements and a European Court decision

The European Court has ruled in case C‑123/20 Ferrari SpA v Mansory Design & Holding GmbH and WH. 

This dispute focuses our attention on the limited edition Ferrari car model FXX K that is similar to another model 488 GTB. There is a visual difference between both models in some design elements.

The German company Mansory Design & Holding GmbH,WH starts to produce and offer those design elements as tuning parts which can be used by owners of 488 GTB to make their cars look like FXX K.

Ferrari initiated a lawsuit in Germany for infringement of unregistered Community design but lost it. The decision was appealed and the German Supreme Court asked the European Court to clarify whether the making available to the public of images of a product, such as the publication of photographs of a car, could lead to the making available to the public of a design on a part or a component part of that product and, if so, to what extent the appearance of that part or component part must be independent of the product as a whole in order for it to be possible to examine whether that appearance has individual character.

The EU Court has ruled, inter alia, that EU law must be interpreted as meaning that the making available to the public of images of a product, such as the publication of photographs of a car, results in the making available to the public of a design on a part of that product or on a component part of that product, as a complex product, provided that the appearance of that part or component part is clearly identifiable at the time that design is made available.

In the first place, the Court noted that the material conditions required for the protection of a Community design to arise, whether registered or not, namely novelty and individual character, are the same for both products and parts of a product. Provided that those material conditions are satisfied, the formal condition for giving rise to an unregistered Community design is that of making available to the public within the meaning of Article 11(2) of Regulation No 6/2002. 

In order for the making available to the public of the design of a product taken as a whole to entail the making available of the design of a part of that product, it is essential that the appearance of that part is clearly identifiable when the design is made available. However, that does not imply an obligation for designers to make available separately each of the parts of their products in respect of which they seek to benefit from unregistered Community design protection.

In the second place, the Court pointed out that the concept of ‘individual character’, within the meaning of Article 6 of Regulation No 6/2002, governs not the relationship between the design of a product and the designs of its component parts, but rather the relationship between those designs and other earlier designs.

In order for it to be possible to examine whether the appearance of a part of a product or a component part of a complex product satisfies the condition of individual character, it is necessary for that part or component part to constitute a visible section of the product or complex product, clearly defined by particular lines, contours, colours, shapes or texture. That presupposes that the appearance of that part or component part is capable, in itself, of producing an overall impression and cannot be completely lost in the product as a whole.

One key thing in order graphic designers to be more successful

Graphic design has become a trendy area for professional development nowadays.

With the advent of the so-called gig economy, being a graphic designer can be a real advantage. On one hand, this job offers you the chance to work remotely which is another trend especially in the light of the Covid pandemic.

On the other hand, graphic design works are in demand in particular in their digital form because all businesses are online now and they need more and more good representation in an attempt to attract consumer’s attention.

So all of this is good but to be successful in a very competitive environment graphic designers should know how to protect their valuable works and how to do business with them.

One key moment in that regard is at least a basic knowledge about copyright law. 

Why?

Because copyright law provides you with all rights to control how one graphic design is used, by whom, where, and whether you receive remuneration for such use. 

Probably you think that copyright law is far too complex. Yes, it is to some extent but nevertheless, there are some basics things that if one designer knows in advance he or she will be in a better position to benefit from the created graphic designs. 

In an attempt to help, I’ve built a new Skillshare class where you can learn all copyright basics related to graphic designs in a friendly way with examples.

If you are interested, here you can find a referral link, it gives you access to the course and 1-month free access to all Skillshare classes if you sign up.

Why graphic designers should understand copyright rights

Nowadays graphic design has become extremely popular both from a creative and business point of view.

With the advent of new modern technologies and the internet as a whole, the graphic design field has attracted a lot of attention and interest.

Doing business with graphic designs, apart from the necessary creative skills, requires specific knowledge related to the available copyright protection too.

Nowadays it is really important for every graphic designer to know at least the bare minimum for copyright law in order to protect his or her designs successfully.

Why is copyright so important for graphic designs?

There are two main reasons.

First of all, copyright is a legal framework that protects every artistic work, including designs, against unauthorized use.

Copyright gives every designer a tool to control the way his/her work is used and to prevent all sorts of infringing activities.

This is crucial because without such control it would be near impossible for designers to make their living because everyone would be able to use their designs for free.

The second reason is that copyright gives designers a ground for doing business with their works. That is to say, copyright stipulates particular rules that allow business transactions with copyrighted designs.

To know all of this can be a huge advantage in your attempt to build a solid and successful career as a graphic designer.

I tried to cover all of this in my Skillshare class where you can learn:

• how to deal with copyright rights over graphic designs;
• what copyrights over designs exist,
• what the requirements for copyright protection are;
• what the term of protection of a graphic design is;
• what fair use of designs is;
• how copyrights over designs are inherited;

In case you are interested in you can check the class from here. 

If you like it I will appreciate a kind review 🙂

Thank you!

More European trademarks for the first half of the year

EUIPO published statistics about IPRs filing during the first six months of 2021. According to the data, European trademark applications have increased with 25% compared with the same period of the last year reaching 101 021. The increase in design applications is 2%.

What’s interesting but not so surprising is that this increase in the trademarks target goods and services such as data processing equipment and computers, business management, and scientific and technological services and research, reflecting the changing needs of consumers and health authorities during the COVID-19 pandemic.

Whether elements of Ferrari can be protected as a European design?

The Advocate General of the European Union H. SAUGMANDSGAARD ØE has given an opinion on Case C‑123/20 Ferrari SpA v Mansory Design & Holding GmbH.

In brief, this case target the question whether elements of an entire design can be protected as unregistered European design. The case has the following background:

Ferrari is a racing car and sports car manufacturer established in Italy. Its top-of-the-range FXX K model, which has not been approved for use on the road, is intended solely to be driven on the track.

Ferrari first presented the FXX K to the public in a press release dated 2 December 2014. That press release included the following two photographs, showing, respectively, a side view and a front view of the vehicle:

The Ferrari FXX K, produced in limited numbers, exists in two versions, which are distinguished solely by the colour of the ‘V’ on the bonnet. In the first version, illustrated by the photographs reproduced above, that ‘V’ is black apart from its low point, which is the same colour as the basic colour of the vehicle. In the second version, the ‘V’ is entirely black in colour.

Mansory Design, of which WH is the chief executive officer, is an undertaking that specialises in the personalisation (known as ‘tuning’) of high-end cars. Mansory Design and WH are both established in Germany. Since 2016 Mansory Design has produced and marketed sets of personalisation accessories (known as ‘tuning kits’) designed to alter the appearance of the Ferrari 488 GTB (a road-going model, produced in a series, available since 2015) in such a way as to make it resemble the appearance of the Ferrari FXX K.

Mansory Design thus offers a number of ‘tuning kits’ which serve to transform the appearance of the Ferrari 488 GTB: the ‘front kit’, ‘rear kit’, ‘side set’, ‘roof cover’ and ‘rear wing’. In addition, it offers two versions of the ‘front kit’, reflecting the two versions of the Ferrari FXX K: on the first version, the ‘V’ on the bonnet is black apart from its low point, while on the second version it is entirely black.

A complete conversion of the Ferrari 488 GTB involves replacing a large portion of the visible body panels. In March 2016, at the International Motor Show in Geneva (Switzerland), Mansory Design displayed a vehicle featuring that conversion under the name Mansory Siracusa 4XX.

Ferrari maintains that the marketing of those ‘tuning kits’ by Mansory Design constitutes an infringement of the rights conferred by one or more unregistered Community designs of which it is the holder.

Principally, Ferrari asserted that the marketing of the ‘front kits’ constitutes an infringement of the first unregistered Community design, covering the appearance of the part of its model FXX K consisting of the V-shaped element on the bonnet, the fin-like element protruding from the centre of that element and fitted lengthways (the ‘strake’), the front lip spoiler integrated into the bumper and the vertical bridge in the centre connecting the spoiler to the bonnet. That section is seen as a unit that defines the specific ‘facial features’ of that vehicle and also creates an association with an aircraft or Formula 1 car. According to Ferrari, that unregistered Community design arose at the time of the publication of the press release of 2 December 2014.

In the alternative, Ferrari claimed to be the holder of a second unregistered Community design for the appearance of the front lip spoiler, which arose at the time of the publication of the press release or, at the latest, on the release of a film entitled ‘Ferrari FXX K – The Making Of’ on 3 April 2015, and which Mansory Design also infringed by selling its ‘front kits’.

In the further alternative, Ferrari based its action on a third unregistered Community design for the presentation of the Ferrari FXX K as a whole, as revealed in another photograph of the vehicle, shown in an oblique view, which also appeared in the press release of 2 December 2014.

Ferrari also claimed, as regards the ‘kits’ offered for sale on the territory of the Federal Republic of Germany, rights based on protection against imitation under the law on unfair trading practices.

At first instance, Ferrari sought an injunction throughout the European Union against the making, offering, putting on the market, importing, exporting, using or stocking of the accessories at issue, and made a number of associated requests (provision of accounting documents, recall and destruction of the products and the award of financial compensation). The Regional Court, Germany dismissed those claims in their entirety.

Before the appellate court, Ferrari stated that its requests for an injunction and its requests relating to the recall and destruction of the products, in so far as they were based on the rights conferred by the Community designs on which it relied, had become devoid of purpose, as the rights in question were to expire on 3 December 2017. (3) On the other hand, Ferrari maintained, in particular, its claims for compensation.

That court dismissed Ferrari’s appeal. In particular, it held that Ferrari’s claims based on the alleged unregistered Community designs were unfounded. According to that court, the first unregistered Community design claimed, relating to the part of the Ferrari FXX K described in point 23 of this Opinion, was non-existent, since Ferrari had not shown that the minimum requirement of a ‘certain autonomy’ and a ‘certain consistency of form’ was satisfied. Ferrari merely referred to an arbitrarily defined section of the vehicle. The second unregistered Community design claimed by Ferrari, covering the front lip spoiler, was also non-existent, on the ground that it too failed to satisfy the ‘consistency of form’ requirement. As to the third design, covering the overall appearance of the Ferrari FXX K, it did exist, but it had not been infringed by Mansory Design.

Ferrari then lodged an appeal on a point of law, which was declared admissible by the Federal Court of Justice. That court considers that the outcome of that appeal, as concerns the claims based on infringement of the rights allegedly conferred by the unregistered Community designs claimed by Ferrari, depends on the interpretation of Regulation No 6/2002.

More specifically, it is necessary to clarify the conditions in which the appearance of part of a product may, in accordance with that regulation, enjoy protection as an unregistered Community design.

In that context, the referring court asks, first, whether the making available to the public, within the meaning of Article 11(2) of Regulation No 6/2002, of the image of a product in its entirety also amounts to the making available of the designs of the parts of that product.

Assuming that that is the case, the referring court asks, second, whether the appearance of a part of the product must, in order to be capable of constituting a separate design, separate from the overall appearance of the product, present, as the appellate court held, a ‘certain autonomy’ and a ‘certain consistency in form’, so that it possible to establish that the appearance of that part is not completely lost in the appearance of that product and presents, on the contrary, an overall autonomous impression by comparison with the form as a whole.

In those circumstances, the Federal Court of Justice decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Can unregistered Community designs in individual parts of a product arise as a result of disclosure of an overall image of a product in accordance with Article 11(1) and the first sentence of Article 11(2) of Regulation No 6/2002?

(2) If Question 1 is answered in the affirmative:

What legal criterion is to be applied for the purpose of assessing individual character in accordance with Article 4(2)(b) and Article 6(1) of Regulation (EC) No 6/2002 when determining the overall impression of a component part which – as in the case of a part of a vehicle’s bodywork, for example – is to be incorporated into a complex product? In particular, can the criterion be whether the appearance of the component part, as viewed by an informed user, is not completely lost in the appearance of the complex product, but rather displays a certain autonomy and consistency of form such that it is possible to identify an aesthetic overall impression which is independent of the overall form?’

The Advocate’s opinion:

1) Article 11(2) of Regulation (EC) No 6/2002 of 12 December 2001 on Community designs must be interpreted as meaning that the making available to the public of the full design of a product, such as the appearance of a vehicle, also entails the making available to the public of the design of a part of that product, such as the appearance of certain elements of the bodywork of that vehicle, provided that the latter design is clearly identifiable at the time when that design is made available.

2) Article 3(a) of Regulation No 6/2002 must be interpreted as meaning that a visible section of a product, defined by particular lines, contours, colours, shape or texture, constitutes the ‘appearance of […] a part of a product’, within the meaning of that provision, which may be protected as a Community design. There is no need, when assessing whether a given design complies with this definition, to apply additional criteria such as ‘autonomy’ or ‘consistency of form’.

Do you know how to protect your intellectual property?

Intellectual property rights have existed for centuries being a strong incentive for business development.

The idea behind the intellectual property is that when you have a monopoly right over an invention, design, creative work, or trademark, you will be able to return the investment necessary for their creation.

On the other hand, all your competitors being restricted to use the same invention, design or trademark will try to offer something better in order to prevail on the market.

Of course, this monopoly right is not unlimited. Intellectual property can give you control over your creative works but under strict requirements and time frames.

Having said that, I’ve created some Udemy courses that can help you to understand some of the most important aspects of intellectual property rights that have practical importance for your business activities.

If you would like you can check them:

1. Complete course on trademark search — in this course you will learn how to search for trademarks in the US, Canada, the UK, Ireland, Australia, and New Zealand. This will help you to select a trouble-free brand for your business avoiding potential legal conflicts.
2. A complete guide on how to build an IP database using Asana — you will learn how to build your own database with all your intellectual property rights. This can happen using a free app such as Asana. In this way, you can monitor and manage your IPRs easily saving time and money.
3. Photography and Copyright: Complete guide for photographers — if you are a photographer or someone dealing with photos this course is for you. It will teach you what is copyright protection over photographs and how to deal with it.
4. Complete course on how to copyright graphic designs — this course will help graphic designers how to protect their graphic designs and do business with them following the copyright norms.
5. The Complete Course on How to Protect European Trademarks — in case you do or want to do business in the European Union obtaining trademark protection can be crucial for your business. In this course, you will learn what the EU trademarks are and how to register them on your own.

Thanks for your interest!