Despite the trouble the EU is in now in due to excessive spending in some countries and the lack of economic growth to compensate, it is has brought a lot of good things. Unfortunately not everything is as good as it should. In April 2003 the EU put in effect regulation called Community Designs. The intention is to protect designs against counterfeiting and piracy. But it is a disaster waiting to happen.
The first signs of trouble have surfaced now with the Apple – Samsung dispute over the design of the Galaxy Tab 10.1. Apple is suing Samsung on infringement on the design of their ipad. Apple has registered a community design on the ipad and is using that now to stop Samsung from bringing the Galaxy Tab 10.1 to the market in the EU. It is the first case in this area as far as I know and judging on how the lawsuit is going the EU judicial system has no clue on how to handle it as well.
The problem in this case is that the design of the ipad pretty obvious if you ask me. A screen and a button. Nothing more, nothing less. Apple even fiddled with the aspect ratio of photos of the devices as part of their submitted evidence since they were probably not as confident about the case as well. But that the case has merit at all is very worrisome.
So what are these community designs all about? (these are taken from the EU FAQ)
The goal is to:
To reduce legal obstacles to the circulation of design goods within the Internal Market and to ensure fair competition in this respect.
The system will foster creativity and innovation by making it easier to protect designs throughout the Internal Market with a single application. It will also help fight counterfeiting and piracy.
I am always puzzled by the reasoning that protection actually fosters creativity and innovation. It is very one sided view. I could make the same argument that protection actually stifles creativity and innovation because the protection stops others to make similar products. On the outside the Ipad and Galaxy Tab have similarities but on the inside they are very different.
To be eligible for protection, designs must be new and must have an individual character. In other words it must be apparent to the public that they are different from products which existed previously.
For up to 25 years. Registrations will need to be renewed every five years up to that maximum
How can a design be new and have an individual character? Who is going to determine that? Definitions of these criteria are extremely hard. I am sure it will lead to inconsistent sentencing by courts.
Again they want to foster innovation and creativity by protecting designs for up to 25 years. How is that helping to be creative or innovative? At some point everything is covered under a community design registration by large companies and any small company has no chance to safely enter the market anymore.
Procedural burdens on applicants will be kept to a minimum: in particular, there will be no need for designs submitted to undergo, before registration is granted, a detailed examination in order to ensure they qualify for protection.
Instead, the OHIM will be able to annul non-qualifying registrations after invalidity proceedings.
To me this is the kicker! There are NO – I repeat NO – checks done. Anything goes. Registration leads to immediate legitimacy to start a lawsuit based on the community design registration.
Component parts not visible once incorporated into complex products, designs dictated by function of the product – for example certain parts of a shaver which must have a certain shape in order to work – and “must-fit” parts of complex products, for example electrical or other interconnections (with the exception of connections in modular systems such as lego) will not be protected under the Community Design.
Furthermore, in line with Directive 98/71, designs which constitute a component part of a complex product will not be protected when used for the purpose of repairing that complex product so as to restore its original appearance. The Commission intends to make parallel proposals to amend the spare parts provisions of both the Directive and the Regulation, in 2004.
Spare parts are exempt. Same applies to functional parts and invisible parts. This is at least good news.
So why is this law so bad? The problem is that regulation like this favors big corporations only. The cost of going through a lawsuit is prohibitive for small companies and individuals. This means that corporations have a stick to use to push them out of the market any time they want to. Who is able to afford a lengthy lawsuit except rich corporations?
The goal is to protect against counterfeiting and piracy of goods which is a good thing. But like with any protection or benefit mandated by law there are unforeseen side effects. Especially when the bar is set very low like in this case.
So why do I care? I care because I am in the business of personalized manufacturing enabling individuals to create, make and sell their own products. This concept is disruptive in nature and it means existing industries will need to adapt. If they resist, they will fight. A clear example is the music industry. In the end everybody looses even if it is only time. 15 years ago I downloaded my first mp3 and today I still do not have a legal way to online access the music I want. To me these are 15 lost years. My biggest worry is that this law is going to be abused by corporations to fight community-driven and individual designers who bring new innovative and creative products to the market which compete with their existing products. It would be sad if would loose again 15 years because of this law.