2007 Japanese Design Law Amendment

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Griselda Anthony
5 years ago
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1 APAA DESIGN COMMITTEE COUNTRY REPORT on JAPAN By Hiroyuki NAKAGAWA (In Adelaide, Australia on 18 Nov. 2007) 2007 Japanese Design Law Amendment The Japanese design law was amended on April 1, 2007, in the points described below. (1) Extension of Duration for Design Rights ---Applied to an application filed on or after April 1, The duration was extended from the current 15 years from the registration date to 20 years from the registration date. Japanese Design Law 21 (Duration of design rights) (1) The duration of a design right (excluding design right of a Related Design) shall expire after a period of 20 years from the date of registration of its establishment. Reason for the amendment [1]: Global harmonization Reason for the amendment [2]: A high percentage of existing cases, at the time of expiry of the design right, show existing needs for the extension of the protection of rights. The percentage in design right cases is as high as 16%, in comparison to only 4% in patent cases. Application <Prosecution> Registration Design right: 20 years from the registration date Patent right: 20 years from the application date 1

2 (2) Graphic Image on a Screen ---Applied to an application filed on or after April 1, It has been determined that graphic image is to be protected under the Design Right System. Japanese Design Law 2 (Definition, etc.) (1)"Design" in this Act shall mean the shape, patterns or colors, or any combination thereof, of an article (including a part of an article; the same shall apply hereinafter except in Article 8), which creates an aesthetic impression to a viewer. (2) The shape, patterns or colors, or any combination thereof, of a part of an article as used in the preceding paragraph shall include those in a graphic image on a screen that is provided for use in the operation of the article (limited to operations carried out in order to enable the article to perform its functions) and is displayed on the article itself or another article that is used with the article in an integrated manner. Reason for the amendment [1]: Screens have increasingly become interface-oriented, and a physical component such as an operation button is commonly replaced with an electronic display such as an operation icon on a screen. Reason for the amendment [2]: Similar protection has already been extended to screen design under the US Design Law, European Design Law and Korean Design Law. Requirements for Registration (A)An image displayed on a display unit of an article (for example, a liquid crystal screen of a digital camera) or a display unit of an article used as an integral part of a relevant article (for example, a display screen as an output destination of a Hard Disc player). AND (B)An image which facilitates a function of an article (for example, an icon facilitates a function of a Hard Disc player) 2

Specific Examples shown in the Examination Standards <Examples of an image that may be registered> An image which facilitates such functions as reproduction and

3 Specific Examples shown in the Examination Standards <Examples of an image that may be registered> An image which facilitates such functions as reproduction and editing e.g. an operation screen of an HD recorder An image used to facilitate a selecting function e.g. an image for making a selection in a mobile video player 3

4 <Examples of an image that should NOT be registered> An image targeted to be used for decorative expression e.g. wallpaper for a computer screen An image of contents e.g. a still image taken from a scene in a movie An image on the Internet e.g. a layout image on a website 4

An image in a game* * An image in a game, which is such an image that already facilitates a function of the game, is screened out from the category of an image

capable of storing information relating to an image of the medium; however, the recording medium itself is not provided with an operation mechanism.

5 An image in a game* * An image in a game, which is such an image that already facilitates a function of the game, is screened out from the category of an image which facilitates a function of an article (device main body) An image recorded on a recording medium* * A recording medium (for example, a compact disc) is capable of storing information relating to an image of the medium; however, the recording medium itself is not provided with an operation mechanism. Therefore, an image recorded on a recording medium as an article relating to a design is not approved as an image used for an operation to facilitate a function of an article. 5

6 (3)Clarification of who constitutes a main body that determines similarity in relation to a registered design It was emphasized that consumers are the main body that determine the similarity between a registered design and a design to be compared thereto, and the consumers aesthetic impression should be the basis of the determination. Japanese Design Law 24 (Scope of registered design, etc.) (2) Whether a registered design is identical with or similar to another design shall be determined based upon the aesthetic impression that the designs would create for consumers. Reason for the change: It was difficult to determine similarity. The main body that makes the determination is identified so that the scope of similarity can be clarified. Meaning of this amendment >It has been clarified that similarity of a design should not be determined by a creator. >It has been clarified that similarity should be determined in the market. (4)Extension of the Application Deadline for Related Design ---Applied to an original design registered on or after April 1, The application deadline for any related design, which was previously limited to the same day as that of an original design, has been extended to immediately before an issuance date of an official publication of the original design. Japanese Design Law 10(Related Design) (1) Notwithstanding Article 9(1) or (2), an applicant for design registration may obtain design registration of a design that is similar to another design selected from the applicant's own designs either for which an application for design registration has been filed or for which design registration has been granted (hereinafter the selected design is referred to as the "Principal Design" and a similar design is referred to as a "Related Design"), if the filing date of the application for design registration of the Related Design as applied is on or after the filing date of the application for design registration of the Principal Design and before the date when the design bulletin in which the application for design registration of the Principal Design is issued. 6

Reason for the change: The existing Law requires that applications for a principal design and any related design be filed on the same day, which does not protect any variety design created later.

Also during a customs inspection, it is very difficult to determine similarity of a design, because time for making an investigation is limited.

7 Reason for the change: The existing Law requires that applications for a principal design and any related design be filed on the same day, which does not protect any variety design created later. The existing Law fails to respond to such a design strategy of marketing a variety of products. Also during a customs inspection, it is very difficult to determine similarity of a design, because time for making an investigation is limited. This situation makes it desirable to allow any related product designed after filing of the principal design. <Example of Principle Design (left side) and Related Design (right side)> How long does it take from the dispatch of a final decision of registration until the issuance of an official publication? <Principal Design> <Related Design > Application Final Decision of Registration Maximum 30 days Payment of Registration Fee Approximately 30 days Notification of registration number * Approximately 30 days Issuance of Official Publication 7

8 * Under the current practice, a maximum three months from the final decision of registration of the principal design are allowed for filing a related design application. However, it is safer to regard as two months as the longest allowed period. End 8

Feedback from the Japan Patent Office as the Office of a Designated Contracting Party under the Geneva Act of the Hague Agreement

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