Recently, the International Trademark Association INTA held the first design conference.
The number of attendees was 215 and more than 30 countries were represented in order to discuss issues such as the interplay between designs, copyrights and trademarks; highlights of European case law and enforcement of designs and many more interesting issues.
The conference was opened by the Danish Minister of Economic Affairs and the Interior, Magrethe Vestager. She spoke about why innovation was important to and absolutely necessary for the development of our world. She also recognized that development was necessary if we shall be able to compete and encouraged all of us to challenge and renew development.
Many more speakers gave their view on design protection from different perspectives. One speaker illustrated how the legislation even within the EC is differing and how enforcement options are different. The requirements for protection and the scope of protection if possible may vary. Also copyrights are not at all harmonized within the EC. Those differences between national legislation make it difficult to navigate but may also be used strategically by the owners.
Some of the other speakers illustrated the balance between aesthetic designs and functional designs. The line has proved difficult to draw and especially the line for when a design is functional or not may be difficult to draw. Both Courts in the US and in Europe have taken several decisions on this specific question and still the border is tricky. Such knowledge is important when deciding which strategies to use in order to protect designs.
The technology itself reveals new possibilities and may also challenge the way of thinking IP in general and especially designs. 3D printing allows you to print your own or somebody else’s designs or a design customized to you by yourself anywhere. The technology raises several questions, especially when a design is created by “networking” or “co-designing” which may be a new trend among designers. Who owns the design and how about individual character? And what about novelty? Is a design still new if created in this sort of public way?
Also owners of designs gave their perspective on designs and told us how, why and when they use registered designs strategically and in combination with the other rights. An interesting point of view was a multinational company which had experienced that design rights were faster and cheaper to enforce than both trademark rights and patents and thus used such successful enforcement as a strategic weapon against competitors.
As a unifying principle in the whole conference, the design conflict between Apple and Samsung was illustrated from different perspectives. The conflict proves that design rights and IP in general is important and may be used as an extremely efficient weapon against competitors.
The impression of the conference is convincing: There is no doubt – design and the right design is becoming more and more important as a trigging buy factor. Thus enormous resources are used in order to create the right designs and to keep competitors from copying the design. Also the conference confirmed my point of view, namely that one should not decide ahead which rights are relevant without considering the other IP rights and, if relevant, combining them to strengthen the owners position.
Henriette Vængesgaard Rasch, European Trademark Attorney
