Design rights in intellectual property : the Maltese and EU perspective

Abstract

This thesis attempts to shed light on Design Protection. Dubbed as the Cinderella of intellectual property, design protection has been given its due importance in Europe by the enactment of Directive 98/71/EC and Regulation 6/2002. This was done primarily to harmonize design protection in Europe and subsequently to create a new right, not just for European citizens. Chapter One focuses on the different legal traditions in Member States prior to the transposition of the Directive in Member States. It also briefly analyses different approaches used and proposed for design protection by the EU. Due to its elusive nature and wide divergence, design protection required a sui generis approach. Chapter Two considers the requirements for design protection. These notions are important for the validity of a design. It also goes into the overlap of protection between Design, Trademarks, Unfair Competition and Copyright, with a particular emphasis on the local law. This Chapter also contains a proposal for a legislative intervention in the Commercial Code to fill what the author considers as a lacuna in the law. Every rule has an exception and Chapter Three delves into the exceptions to design protection. The on going spare parts debate is also fairly treated in this Chapter. The Commission's spare parts proposal together with the concerns of legal authors on these proposals were reviewed. Chapter Four considers the unitary right, the salient differences and similarities between Registered Community Designs and Unregistered Community Designs. The grounds of invalidity of Registered Community Designs were also explored. An extensive reference was made to the Hague Agreement, since the EU is a contracting party to this Agreement. Moreover the chapter ends with an overview of the legislative measures in place to enforce design rights. The Conclusion whist acknowledging the benefits of the Directive and Regulation governing design law in Europe, points to the short comings of the system, namely the spare parts issue and the lack of harmonization in copyright and unregistered designs. Moreover the author endeavoured to give an account of the use of design registrations both in Malta and with OHIM.