Design Protection for Products that are 'Dictated by Function'

Kur, M. Levin and J. Schovsbo (eds), The EU Design Approach – A Global Appraisal (Edward Elgar (Forthcoming))

23 Pages Posted: 4 May 2018

See all articles by Jens Schovsbo

Jens Schovsbo

Centre for Information and Innovation Law (CIIR)

Graeme B. Dinwoodie

Chicago-Kent College of Law

Date Written: April 18, 2018

Abstract

This Chapter examines the responses of the EU design system to situations where just one or very few shapes will enable the product to work. It focuses on the exclusion of from design protection of features that are “dictated by function” and the limits on protection for the design of spare parts. After describing the analytical starting point that flow from the so-called “EU Design Approach”, recent decisions of EU and national courts are analysed. We argue that even though the recent Doceram decision of the CJEU has provided a good starting point for determining those features of a design that are dictated by function, great care should be taken not to over-extend the principles of the case lest that jeopardize some basic features of the EU Design Approach. For spare parts, suggest that legislation is needed and recommend the introduction of a repair clause in the EU Design Directive.

Keywords: Design law, EU Design Approach, shapes dictated by function, spare parts, Doceram, repair clause

Suggested Citation

Schovsbo, Jens and Dinwoodie, Graeme B., Design Protection for Products that are 'Dictated by Function' (April 18, 2018). Kur, M. Levin and J. Schovsbo (eds), The EU Design Approach – A Global Appraisal (Edward Elgar (Forthcoming)). Available at SSRN: https://ssrn.com/abstract=3164916 or http://dx.doi.org/10.2139/ssrn.3164916

Jens Schovsbo (Contact Author)

Centre for Information and Innovation Law (CIIR) ( email )

University of Copenhagen
Karen Blixens Plads 16
Copenhagen, 2300
Denmark

Graeme B. Dinwoodie

Chicago-Kent College of Law ( email )

565 West Adams St.
Chicago, IL 60661
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
68
rank
316,138
Abstract Views
255
PlumX Metrics