Journal Article

The concept of reciprocity in European design law

Henning Hartwig

in Journal of Intellectual Property Law & Practice

Volume 5, issue 3, pages 186-191
Published in print March 2010 | ISSN: 1747-1532
Published online February 2010 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpp229
The concept of reciprocity in European design law

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Legal context

Recent case law from various national jurisdictions, including Austria, Germany, Switzerland, and the UK, shows that European design law is predominantly governed by the concept of reciprocity. This doctrine becomes primarily manifest in the relation between the individual character and the scope of protection of the asserted design-in-suit as well as in the identity of the ‘informed user’ and the ‘designer’, demonstrating that the level of acquisition and enforcement of design rights are inversely linked and much deeper intertwined than, for instance, in trade mark law.

Key points

Differing from the latter, European design law does not accept impairment or strengthening of design rights after the date of filing of the application or the date of priority; the underlying scope of protection of the asserted design-in-suit is static, not flexible, and conclusively depends on its degree of individual character as determined at that date.

Practical significance

Consequences of the concept of reciprocity will encourage design owners and practitioners to rethink their design filing strategy (both in Europe and when claiming foreign priority) in order to improve their position between Scylla and Charybdis—striving for the broadest-possible scope of protection without inviting others to tackle the design's validity.

Journal Article.  5141 words. 

Subjects: Arbitration ; Intellectual Property Law

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