Tag: design

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CJEU provides some clarity on when a design is ‘solely dictated by its technical function’
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A successful year for trade marks and designs worldwide
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U.S. Court finds Adidas’ Stan Smith shoe trade dress protectable
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Bring It On!
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Productivity Commission’s broad IP review in Australia – Submissions due 30 November
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Replica Furniture: A Call to Arms

CJEU provides some clarity on when a design is ‘solely dictated by its technical function’

The Court of Justice of the European Union (CJEU) recently confirmed that the “no-aesthetic-consideration” test is the preferable approach when deciding whether a design is “solely dictated by its technical function”.  As a result, if aesthetic considerations are completely irrelevant the design should not be registered.  However, this does not mean that the legislation requires a design to have an aesthetical merit in order to be registered as a Community Design.

Last month, the CJEU published their long-waited decision on the request for a preliminary ruling raised by the Oberlandegericht Düsseldorf (the “German Court”) back in 2016.

The CJEU has provided some clarity on the interpretation of Article 8(1) of the Community Design Regulation (CDR) and how to determine if a product’s features are “solely dictated by its technical function”. The CJEU took the chance to stress, once again, that the determination “must be interpreted in a uniform manner in all Member States”, which strongly reiterates the EU’s objective for cohesive legal application.

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U.S. Court finds Adidas’ Stan Smith shoe trade dress protectable

It’s game, set, match for Adidas when it comes to the protectable trade dress in its iconic Stan Smith tennis shoe. In a dispute between Adidas and Skechers over the “Skecherizing” of the Stan Smith shoe, the District Court for the District of Oregon denied Skechers’ motion for summary judgment finding that Adidas could show it has protectable trade dress in its well-known shoe design because the design was recognizable to consumers and not functional. Adidas America Inc. et al. v. Skechers USA Inc., D. Or (August 3, 2017) (order granting in part and denying in part motion for summary judgment).

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Bring It On!

On 31 October 2016, the U.S. Supreme Court heard arguments in the ongoing dispute between Star Athletica LLC and Varsity Brands Inc, two major designers and manufacturers of cheerleading uniforms. In what could be considered a bizarre mash up of early 2000s films “Bring it On!” and “Legally Blonde”, the two companies are involved in a stoush as to whether or not the two-dimensional designs of coloured stripes and zig-zags that are applied to cheerleading uniforms can be protected under US copyright law. My U.S. colleagues John Cotter and Shamus Hyland previously discussed the Sixth Circuit Court of Appeal’s decision in this matter here.

It will come as no surprise to readers that U.S. and Australian laws differ in many respects and this is particularly the case when it comes to copyright and designs laws.

In Australia, fashion designers may have recourse to the Designs Act 2003 (Cth) and/or the Copyright Act 1968 (Cth) depending on whether or not they are looking to protect two-dimensional (prints, images etc.) or three-dimensional (cut, shape, fit etc.) designs and how they intend to exploit the designs.

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Productivity Commission’s broad IP review in Australia – Submissions due 30 November

By Naomi Pearce

There are two weeks left to make submissions to the Productivity Commission (the Commission) on the Commission’s Intellectual Property Issues Paper published in October.

The IP Issues Paper can be found here and the process for making a submission (by 30 November) is outlined here.

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Replica Furniture: A Call to Arms

In a four-part series recently published in Habitus Living, we explore the issues faced by makers of original and authentic designs by the rise of the replica furniture industry in Australia.

The popularity of reality renovation shows has sparked interest and demand for designer furniture, homewares and lighting products. Consumers seeking such products at affordable prices have been serviced by businesses dedicated to the sale of replica furniture products that are manufactured cheaply overseas and widely available online.

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