Design Litigation in the EU Member States: Are Overlaps With Other Intellectual Property Rights and Unfair Competition Problematic and Are SMEs Benefiting From the EU Design Legal Framework?

Abstract

Genuine overlaps (several intellectual property rights (IPR) applying to the same intellectual effort) create over-protection. There is hardly any empirical legal research done on how claimants have litigated at national level not only on their design rights but also on another IPR or unfair competition. This article fills this gap by examining the decisions on all types of design rights (registered and unregistered) from the courts of the 28 Member States since the entry into force of the Design Directive and Design Regulation until August 2017, where claimants also sued on the basis of another IPR namely patents, utility models, trade marks, copyright, and the tort of slavish imitation. The article also determines the proportion of small and medium-sized enterprises and big companies who litigate and their rate of winning. This gives the extent of the use of the EU design right system by type of company and an indication of its success.

Keywords: Design, Copyright, Patent, Trade Mark, Unfair Competition, Overlap, Statistics, SME, Litigation EU Law