The Protection of Aesthetic Creations as Three Dimensional Marks, Designs, Copyright or Under Unfair Competition

The Protection of Aesthetic Creations as Three Dimensional Marks, Designs, Copyright or Under Unfair Competition
Christopher Heath

ISBN 1–84113–571–2
Hart Publishing

With the enactment of the European Design Directive (October 1998) and the Design Regulation ( January 2002), design protection in Europe has changed its face. While not all countries yet have implemented the Design
Directive, the Design Regulation has been operative since January 2003, when the European Trade Mark Office opened its doors to applicants for Community designs. This paper will thus begin with a brief introduction into
European design protection (II). The Design Directive explicitly states that the protection of an aesthetic creation as a design must not preclude protection under copyright law where the protection requirements are otherwise
met. Copyright protection would thus be the second tier of protection available under the laws of national member states and is explored under (III) for Europe, the US and Japan. Increasingly, attempts have been made to obtain protection for aesthetic creations also as indications of origin either by registration as three-dimensional marks or by claiming protection against so-called “slavish imitation”. These issues are further explored under (IV) and (V). Also in these cases, a comparison is made between Europe, Japan and the US.