An interesting (and practical) case of how fugitive, elusive make it undefinable, is the concept of “individual character” in Community design law*.
The “Turn On” lamp below is the result of Italian architects Lana Savettiere (on the left):
Cute, isn’t it ? However, it is strangely similar to Apple’s QuickTime logo (on the right) as anyone who is sufficiently knowledgeable of computers will have certainly thought when he/she first saw the lamp in question..
I’m curious, though, about what would happen in the following scenario.
Imagine the design of the lamp were applied for as a Community Design –CD- (and maybe it is, I did not bother searching because I’m more interested in the intellectual problem). Of course it would get registered (no substantive examination, of course).
Now, a third party decided to manufacture and sell another similar lamp. Could our CD’s holder sue and prevail or would the third party have a valid defense by saying that the CD lacks “individual character” because the design at issue (not the lamp…) is basically a knock off of the Quicktime logo?
The CD Regulation in fact says that “a Community design should not be upheld unless the design is new and unless it also possesses an individual character in comparison with other designs” (19th whereas) and art. 6 embodies the principle, so that “a design shall be considered to have 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”.
I will not enter the who-the-informed-user-is argument although it may have a bearing. About it another time. The issue here is the degree of horizontal disclosure (as opposed to vertical, which, in my mind, is the succession in time of designs in a particular field –even though it’s far by certain that say a design of a Greek tunic might not have individual character today…), which is how to assess the prior existence of a similar /identical design but in a totally unrelated field or even in one of the many faceted, ever surprising and ever fascinating designs which nature so abundantly and generously offers to us, that may destroy the individual character of a design.
Apparently the answer should be found in art. 7, which says that a design shall be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, except where these events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the Community”.
The key words to which a CD holder defending from an invalidity action would make recourse are “except where these events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the Community”. But what is the sector concerned? That of lamps or that of computer geeks? The question is deceptively simple and the readily “rational” answer falls short of its legal consequences.
Indeed, if the sector concerned is that of lamps, why is that a CD affords protection to the owner thereof irrespective of the good to which the design is applied? A design which protect lamps, protects as well as patterns for a new line of upholstery (geeks being geeks and sometimes nerds, who may discard such a possibility?) and graphical signs which may serve as trademarks. So, can the reverse happen? If it can (and yes IT can) would the sector concerned then also encompass lamps?
I think it does, and so in my view, the rationale of protection defines the horizontal disclosure which, honestly suits me fine. A robust re-definition and restriction of IP rights is seriously needed. The endless multiplication in time, size and scope of IP rights is no longer a stimulus or incentive to innovation, but rather restraint of trade, a dangerous (relatively free and inexpensive) pass to monopolistic instincts and a recipe to economical regress.
But that’s my view.