Copyright and Related rights 9.4.2013
Legal Counsel IPR Maria Rehbinder
• maria.rehbinder@aalto.fi
• http://copyright.aalto.fi
• Information in Finnish, Swedish and English
• Videos including Learn Copyright in Two minutes,
Buying and Selling Copyright
• Model agreements
Protection of Product Appearance Features:
Copyright, Design Right, and Trademark
• Several ways to protect design as intellectual property
• Simultaneous and during the lifespan of the product
• Design Right protected as an unregistered right in the
EU, can be registered nationally, in the EU and
internationally
• Trademark protection can protect the appearance of a
product
• Copyright for design that is original above work
threshold http://copyright.aalto.fi
The Trade Marks and Designs Registeration Office of the European Union
http://www.handsoffmydesign.com
Patent protection 20 year from filing
US4109961 (A)Patent, inventor Peter Opsvik, applicant Stokke As , filed 1.11.1972
Patent application has to be filed before
disclosing the invention
An adjustable chair includes a pair of upwardly extending
spaced uprights having a plurality of horizontal grooves
provided along the substantial length thereof at inner
surfaces of the uprights and facing each other, a foot rest
plate and a seat bottom plate member having opposite
ends respectively disposed in opposite ones of the
grooves at desired vertical locations along the uprights.
The foot rest and the seat bottom are interchangeable
and are tightly held in place by fastening means extending
between the uprights.
Trademark
The purpose of a trademark is to distinguish products of one
trader from another in the market
Registration gives the exclusive right to use mark as a symbol
for goods or services
Registration requires that the trademark is distinctive
For example the form of Maglite was not distinctive enough
to be protected as trademark ( EU Court of Justice 11.10.2004 ) ,
the form of a Coca-Cola bottle is distinctive enough
Trademark
• Word or a figure ,slogan, letters, graphic design, or
combination of these
• Stokke:THE CHAIR THAT GROWS WITH THE CHILD
• The form of a package for example the CocaCola bottle,tune, for example the Nokia Tune
• A certain, by number specified shade of
colour to a certain product class, for example
Fazer blue colour to chocolate
Trademark
The Apple mark can be registered as a distinctive mark
in class 9 that includes computers, but could not be
registered for class 29 that includes preserved , frozen ,
dried and cooked fruit
International Classification of Goods and Services Nice
Agreement 45 classes, Goods 1-34, Services 35-45
For basic registration fee 3 classes
http://wipo.int/classifications/nivilo/nice/index.htmlCTMONLINE Trade mark consultation service
http://oami.europa.eu
Oy Karl Fazer Ab Class 30: Chocolate
Pantone 280 C
Trademark
You can use the R mark only for registered marks
You can use TM for all marks , unregistered marks,
used as a trademark
An unregistered trademark can also be established
nationally by long and succesfull use, only protected
nationally, harder to defend than a registered
trademark
Trademark
Can be registered nationally, for example in Finland
Registration fee in Finland 215 euro/3 classes
Can be registered with one application to whole EU
Registration fee for EU 900 euro online
International registration under Madrid Agreement, requires first EU or national
registration. If EU registration is the first registeration, then the international
registration is done with OHIM. If national registration is the first registration,
then the international registration is done with PRH
www.oami.europa.eu
www.prh.fi
Trademark
Protection starts from the date of an accepted
application and protection last 10 years from registration
Unlimited time as long as renewal fee is paid every 10
years
Other IPR have limited term, a trademark is forever !
In order to remain distinctive a trademark has to be
defended against unauthorised use by competitors,
other companies offering products or services
Trademark registration
• Fiskars Oyj
• Class 8.
• Rek.nro 231754
Design Right
Design right protects new design against copying
Registration of a design right provides an exclusive
right to use the design
Others may not use the design without the consent
of the design right owner
Design right requires that design is new and has
individual character
Individual character means that the overall
impression of the design differs sufficiently from the
overall impression of design already made
available to the public
Design right
Individual character is assessed in the group of products
Design right does not mean to give exclusive right to simple or
commonplace designs or basic geometrical forms such as a
square
If you apply for a design right to be registered in Finland, the
NBPR, National Board of Patents and Registration will inspect
your application, and the design is not registered if it is not new
and individual
OHIM is the European Union agency responsible for registering
trade marks and designs that are valid in all 27 countries of the
EU
If you apply for EU Design right registration there is no
inspection, but claims againts your registration can be made
later
The Trade Marks and Designs Registeration Office of the
European Union http://www.handsoffmydesign.com
Design Right
When a design right is registered, the registration is valid
for five years from the filing date and can be renewed for
four further periods of five years, 25 years max
EU registration+ publication fee for one design is 350
euros
Application fee for registration in Finland is 185 euro
In the application a Locarno class indicated
The registered designs are available in National and
OHIM databases
Design Right
In the EU a grace period of 12 months from
making available to the public
If registered within the grace period, it is still
considered new in OHIM and EU
NOTICE absolute requirement of new in other
countries for example in Asia, so if you want to
register in Japan, do not publish design before
registration
Consider to register first, even before showing the
design to possible business partners
Publication of a registered design can be deferred
International Registration
•
WIPO World Intellectual Property Organisation
http://www.wipo.int/hague/en/forms.html
Unregistered Design
In EU also unregistered designs are protected
for three years
It is easier to defend a registered design
In order to lisence or sell a design it may be
better to register it
Registered Community Design RCD
• To register online you need max 7 digital pictures of the
product, credit card and file the form online
• The pictures must contain only the product, good to
have different angles
• Photos or drawings
• Assistance in filing
• http://oami.europa.eu/ows/rw/pages/QPLUS/forms/elect
ronic/fileApplicationRCD.en.do
Copyright
Protects works that are original, products of
creativity, artistic or literary works
A work has to be fixed to a certain form
Idea, information, subject matter not
protected
Protection of form, not the idea or
information contained in the form
Copyright Council of the ministry of education and culture
gives opionions on originality required for copyright
protection. These products have the originality required:
TN 1995:7
Hannu Kähönen
Trice-chair (1985)
TN 2010:10 Alvar Aalto
Aino Marsio
Aalto-vase(1936)
TN 2006:9 mm.
Eero Aarnio
Pastilli-chair(1967)
http://www.minedu.fi/OPM/
Photo: Creadesign Oy
KKO 1988: 82
Krystyna Rudzinski's work exceeded
the originality threshold.
Teoskynnys
• |
Piraattilahti.fi ,TTVK used this
image
Copyright and Design
Design gets copyright above the work
threshold, treshold varies in different
countries
Copyright
• In Germany traditionally ”museum test” if a work is fit
for a Design Museum collection , it gets copyright
protection
• In Sweden design threshold very low
• In Finland work treshold has been high for design,
recently protection gained more easily
• www.minedu.fi
Supreme Court of Norway 27.6.2012, Trumf chair infringes Peter Opsvik
copyright to Tripp Trapp chair , copyright lisenced to AS: Stokke
internationallawoffice.com
photo:
Supreme Court 9.4.2009 Sweden
Maglite lamp (above) was original, design
above work treshold , IKEA (below) infringed
copyright
Supreme Court 9.4.2009
• "E24 - Konsumentvaror"
• Lika som bär: MagLites ficklampa överst och
Ikeas version under.
• Ikea förlorar mot Maglite
Copyright cases in Finland
• Design should be primarily protected by Design
Right according to the drafting principles of Finnish
Copyright Act, therefore work threshold has been
high in Supreme Justice cases KKO 1932 II 267
KKO 1975 II 25 , KKO 1948 II 464 ja KKO 1976 48
cases dealing with furniture and lamp design.
• Ministry of Education Copyright Council has made
decisions that follow the Scandinavian trend of
allowing copyright protection more easily Folding
Chair TN 1995:7; Lamp FYR TN 1997:4, Furniture
TN 2004:4.
Copyright cases in Finland
Ministry of Education Copyright Council decisions
TN 2010:10 1976 The Aalto-vase designed by Alvar Aalto and Aino
Marsio is protected by copyright
TN 2006:9 furniture design classics by for example Eero Aarnio pastilli
chair were protected by copyright.
Copyright protection for design classics is important because these designs
have economic value beyond the maximum period of 25 years provided by
design right.
TN 2007:7. Ergonomic berry picking device was not above work threshold.
KKO 1979 II 64
• Kalervo Ojutkangas'
photograph
• Pekka Jylhä's painting
Work treshold already too low ?
• In Sweden copyright protection for clothing
(Skinnjacka)
• Stocholms Tingsrätt 2.12.2009 T 16022-06
• Nordisk Immaterial Rättskydd, Häfte 4/2010
Jimmy Skogström: Modebranschens behov av
adekvat design skydd
Copyright and Design
Design gets copyright above the work
threshold, treshold varies in different
countries
Copyright
Protection is provided by law as soon as the
work is original enough to rise above the
treshold of originality
No registration is needed
The Berne Convention prohibits registration as a
requirement for protection
Copyright can be registered in the USA and
China
Copyright
Protection starts from the moment of creation and
last the lifetime of the author plus 70 years from the
year the author died
Gives a longer protection period than Registered
Design Right, therefore important for design classics
If there are several authors protection from the year
the last surviving author died
Can be sold, lisenced, is passed on as inheritance
Copyright
Copyright consist of two economic rights and
two moral rights
Economic rights are the right to make copies
and the right to make available to the public
Moral rights are the paternity right and the right
to respect: the name of the author has to be
mentioned, the work must not be alterered
without permission from the author
Exceptions to economic rights
In USA and UK fair use is possible without prior consent from the author
or payment
In EU there are exception rules defined in the Infosoc Directive and
Copyright Act
For example if you wish to use pictures to illuminate a scientific work
you can do so without consent of author or payment
Name of the author and the source have to be mentioned
Commercial users such as publishers often demand that only cleared
material be used
Responsibility for illegally using the works of others severe
C and TM
The Copyright mark C can be used by all authors
Use the circled C then the year of publication and
the name of the author, or the company holding the
copyright
C 2011 Derek Designer
TM for unregistered trademarks can be used by all
who offer goods or services
Derek Design TM
Intellectual Property Agreement
• Intellectual Property can be transferred only with an
agreement
• The rights transferred should be clearly defined
• Also in employment contracts IPR transfer should be
clearly defined
• Finland does not have an work for hire clause in
Copyright Act
Agreement
• The right transferred can be an exclusive right – author
can no longer use his/her work
• or a non-exclusive right – possibility to grant rights to
several users
• or sole right- author can still use the work but cannot
transfer right to a third party saa yhä itse käyttää teosta
mutta ei voi luovuttaa kolmannelle
• According to Copyright Act the right to alter and the
right to further transfer to third parties must be
specifically mentioned in the agreement
Agreement
• Agreement can be made electronically for example by
clicking I accept the Terms of the Contract
• A valid agreement if the person accepting has had the
chance to view the terms
• Also possible to make agreements by e-mail and
defining the transferred rights in the invoice – by paying
the invoice client accepts the terms
• Offer + Acceptance = Agreement
Assistance
maria.rehbinder@aalto.fi