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Tuesday, 14 July 2009

ECJ to unravel indigestible spaghetti of design questions

Via the ever-vigilant Hugo Cox and the UK's IPO website comes news of an interesting reference to the Court of Justice of the European Communities for a preliminary ruling from the Tribunale di Milano (Italy) in Case C-168/09 Flos SpA v Semeraro Casa & Famiglia SpA. This reference deals with the interpretation of the provisions of harmonised national law in Europe regarding the protection of design right.


Right: the IPKat runs so speedily to deliver his comments to the IPO on Case C-168/09 that he forgets his tabby coat ...

The questions referred are as follows:
"1. Must Articles 17 and 19 of Directive 98/71/EC [on the legal protection of designs] be interpreted as meaning that, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that Directive, the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which - albeit meeting the requirements for protection laid down in copyright law - fell to be regarded as having entered into the public domain before the date on which the statutory provisions introducing copyright protection for designs into the domestic legal order entered into force, in so far as they had never been registered as designs or in so far as the relevant registration had already expired by that date?

2. If the answer to the first question is in the negative, must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that Directive, the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which - albeit meeting the requirements for protection laid down in copyright law - fell to be regarded as having entered into the public domain before the date on which the statutory provisions introducing copyright protection for designs into the domestic legal order entered into force and where a third party - without authorisation from the holder of the copyright on such designs - has already produced and marketed products based on such designs in that State?
3. If the answers to the first and second questions are in the negative, must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that Directive, the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which - albeit meeting the requirements for protection laid down in copyright law - fell to be regarded as having entered into the public domain before the date on which the statutory provisions introducing copyright protection for designs into the domestic legal order entered into force and where a third party - without authorisation from the holder of the copyright on such designs - has already produced and marketed products based on such designs in that State, where protection is precluded for a substantial period (a period of 10 years)?"
The IPKat, noting that the IPO has done a great job in shrinking the referred questions to more manageable proportions, wonders what might be the smallest number of words in which these three questions might be succinctly summarised. Merpel says, there are more important matters at stake: the IPO sent out one of its "Dear Interest" emails this morning which reads:
"... The ECJ have been asked for a preliminary ruling on Articles 17 and 19 of
Directive 98/71/EC.

... If you would like to comment on this case please e-mail policy@ipo.gsi.gov.uk before 17 July".
17 July is this Friday; this is the holiday season and it will take from now till then to work out what the questions mean, never mind working out how to respond. Given that the reference was only made on 12 May of this year, and most references take the best part of two years to process, isn't this time limit just a teensy-weensy bit mean? Tufty says, "Am I the only person who hates being addressed as 'Dear Interest'? I'm not an Interest, I'm a Kat ..."

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