Linked by Thom Holwerda on Thu 11th Aug 2011 09:22 UTC
Legal Earlier this week, we were introduced to a new concept in intellectual property law: the European 'Community Design'. The Community Design is a sort of trademark on design, and sits halfway between a trademark and a patent. I decided to investigate what, exactly, the laws and regulations around Community Designs are, and what I found was shocking. Think the USPTO is bad? Wait until you learn about the Community Design.
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A small explanation needed
by JAlexoid on Sun 14th Aug 2011 20:43 UTC
JAlexoid
Member since:
2009-05-19

So what is going on here is that companies can simply select the most favourable court system - the German one, in this case - file their injunction request there


It's not exactly like that overall. There are rules to where the lawsuit has to be filed. Since Samsung has a lot of official subsidiaries in different EU countries, Apple could chose to file almost anywhere.
Per 6/2002/EC Art 79, 44/2001/EC Art 2(1) and Brussels Convention 1968 Art 2 - Apple could only file in countries that have subsidiaries.
The benefit of this is that the defending party is not obliged to go to another country(part of a country, like East TX) to defend itself.

So, the filing process is broken, the court procedure is broken - and that isn't even all.

The court procedure is very much the sanest that could have been devised. Germany has an issue with heavy-handed judicial system though, when it comes to soft issues.

Now imagine Apple copying the design of a small company (which they have done so many times before - see Konfabulator or Delicious Library). This company has a Community Design, and tries to get an injunction, and gets it.

Not necessary. Apple would have to file against me in my own country(mandatory) and not all countries have judges as heavy handed as Germany does.


And, of course, the small company has to pay Apple damages for the period the injunction was active.

Absolutely incorrect statement. That is only true if the court decides that way and that depends on the country. However a successful defence against Apple is free to the defendant, as per the conventions and regulations cited above, Apple would foot the bill for your defence(without any options).

In short:
- The court system in EU is fragmented and presents a almost all legal system in the world today
- OHIM only formally registers the designs, but CD only requires public disclosure. The registration only helps, but is not mandatory.
- Trademarks are also in the same category and handled by the same authority. The registration only helps, but is not mandatory.
- German courts are pedantic and heavy handed. Even Florian Mueller indirectly admitted to it, since he had an injunction taken out in Germany on a completely unrelated to CD issue.

PS: Thom, I don't know how you managed to get so little results but I get "1430 results in 15 pages in 4.07 seconds"
http://esearch.oami.europa.eu/copla/advanced#/designs/1/search&Appl...

With the most ridiculous being the incase ripoffs:
http://esearch.oami.europa.eu/copla/design/data/001266233-0001
http://esearch.oami.europa.eu/copla/design/data/001266308-0001
http://esearch.oami.europa.eu/copla/design/data/001266274-0001

PPS: Opinions expressed in my post are not only mine(as IANAL), but by people with degrees in International Law, International IP law and practising IP lawyers from Italy, Finland and Baltic States.

Edited 2011-08-14 20:46 UTC

Reply Score: 3