Response 495807240

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Privacy Notice and Introduction

5. What is your organisation?

Organisation
European Union Intellectual Property Office (EUIPO)

7. What is your profession?

Seconded National Expert at EUIPO

1. Virtual Designs

1. Do you agree with our proposed approach to protect virtual designs?

Please select one item
Yes
No
Somewhat - please explain below

2. If you create virtual designs, would you protect your virtual design using the proposed designs system?

Please select one item
Yes
No - please explain below
Not applicable

3. Which types of virtual designs should be protected? (choose all that apply)

Please select all that apply
Graphical user interfaces
Icons, including animated icons
Screensavers
Projected interfaces and information
Augmented reality
Virtual reality
Physical devices with electronic elements
Expressive content, such as a photograph, an online video, or an entire video game
Fonts
Holograms
None
Other - please specify below
Please note that all the above (underlined) would be protectable under the new EU design law proposed.

4. Do you agree with IP Australia’s proposed approach to infringement of virtual designs?

Please select one item
Yes
No - please explain below
If you answered 'No', please explain your answer below
Please note the differences from the EU regime. According to the new Article 20 of the Amending Regulation ‚Limitation of the rights conferred by an EU design’ the following is proposed:

‘1. The rights conferred by an EU design shall not be exercised in respect of:
(a) acts carried out privately and for non-commercial purposes;
(b) acts carried out for experimental purposes;
(c) acts of reproduction for the purpose of making citations or of teaching;
(d) acts carried out for the purpose of identifying or referring to a product as that of the design right holder;
(e) acts carried out for the purpose of comment, critique or parody;
(f) the equipment on ships and aircraft that are registered in a third country and that temporarily enter the territory of the Union;
(g) the importation into the Union of spare parts and accessories for the purpose of repairing ships and aircraft referred to in point (f);
(h) the execution of repairs on ships and aircraft referred to in point (f).
2. Paragraph 1, points (c), (d) and (e), shall only apply where the acts are compatible with fair trade practices and do not unduly prejudice the normal exploitation of the design, and in the case of point (c), where mention is made of the source of the product in which the design is incorporated or to which the design is applied.’

5. Should we allow formats such as video files or animations to represent virtual designs in an application?

Please select one item
Video files
Animations
Both (video files and animations)
Neither
Other - please specify below
Please note that EU design law proposed would protect animation represented i.a. by means of video files.

6. How do you think the copyright/designs overlap provisions should apply to virtual designs?

Please explain your answer below
Please note that the new EU design regulation proposed, namely Article 96 paragraph 2 of the Amending Regulation states the following:
‘2. A design protected as an EU design shall also be eligible for protection by copyright as from the date on which the design was created or fixed in any form, provided that the requirements of Union copyright law are met.’

This is supported by the Recital 33 of the same Regulation:
‘(33) Given the advanced harmonisation of copyright law in the Union, it is appropriate to adjust the principle of cumulation of protection under Regulation (EC) No 6/2002 and under copyright law by allowing designs protected by EU design rights to be protected as copyright works, provided that the requirements of Union copyright law are met.’

7. Are there any unintended consequences or adverse effects of this proposal?

Please explain your answer below
N/A

8. Are there other options that should considered? If so, how are these better than the proposed model?

Please explain your answer below
N/A

2. Partial Designs

1. Do you agree with our proposed approach to protect partial designs?

Please select one item
Yes
No
Somewhat - please explain below

2. Would you register your partial design using the proposed system?

If you answered 'No', please explain below
N/A

3. Do you agree that a part of a product could be indicated by means of visual indicators in representations, by a written claim or by both visual indicators and a written claim?

Please select one item
Visual indicators
Written claim
Both visual indicators and written claim
Other - please explain below
Please explain your answer below
According to the EU legal regime it is only design representation that determines the scope of protection, but not a written description

4. Do you agree that a product name for any design should be sufficiently clear for a familiar person to determine the product’s nature and intended use?

Please select one item
Yes
No

5. Do you agree with IP Australia's proposed approach to infringement of partial designs?

Please select one item
Yes
No - please explain below

6. Do you agree with IP Australia's proposal that the designs/copyright overlap provisions should apply to partial designs in the same way as they apply to designs for whole products now?

Please select one item
Yes
No - please explain below

7. Do you agree that ‘statements of newness and distinctiveness’ (SONDs) should be abolished?

If you answered 'No', please explain below
N/A, not clear how these concepts are applicable in Australia. There is no concept of ‘distinctiveness’ in EU design law.

8. Are there any unintended consequences or adverse effects of the proposal?

Please explain your answer below
N/A

9. Are there other options that should considered? If so, how are these better than the proposed model?

Please explain your answer below
N/A

3. Incremental Designs

1. Do you support our proposed approach to preliminary designs?

If you answered 'No', please explain below
N/A Please note that EU design system does not know the concepts of incremental designs, preliminary designs and linking described above. New designs, although being developed by the same design holder and possibly based on his previous design are considered individual separate designs and must pass the threshold of individual character and novelty to obtain protection in the EU. However, a designer can benefit from the priority date of its first design to extend protection of the same design, as well as from the 12 months pre-filing disclosure ‘grace period’ during which disclosures by the designer or his successor in title would not be detrimental to novelty of the design if protected.

2. Would you use the preliminary design option to protect your incremental designs?

If you answered 'No', please explain below
N/A

3. Do you support our proposed approach to post-registration linking?

If you answered 'No', please explain below
N/A

4. Would you use the post-registration linking option to protect your incremental designs?

If you answered 'No', please explain below
N/A

5. If you plan to export your design, would you also want to use the preliminary design option?

Please explain your answer below
N/A

6. Are there any unintended consequences or adverse effects of either of these proposals?

Please explain your answer below
N/A

7. Are there other options that should be considered? If so, how are these better than the proposed models?

Please explain your answer below
N/A