Schovsbo and Dinwoodie, ‘Design Protection for Products that are “Dictated by Function”’

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.

Schovsbo, Jens and Dinwoodie, Graeme B, Design Protection for Products that are ‘Dictated by Function’ (April 18, 2018) in Kur, M Levin and J Schovsbo (eds), The EU Design Approach – A Global Appraisal (Edward Elgar (forthcoming)).

First posted 2018-05-06 09:40:23

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