Design litigation in the EU Member States: Are overlaps with other intellectual property rights and unfair competition problematic and are SMEs benefitting from the EU design legal framework?

Church, Oliver; Derclaye, Estelle; Stupfler, Gilles

Abstract

Genuine overlaps (several intellectual property rights (IPR) applying to the same intellectual effort) create overprotection. There is hardly any empirical legal research done on how claimants have litigated at national level not only on their design rights but also on another IPR or unfair competition. This article fills this gap by examining the decisions on all types of design rights (registered and unregistered) from the courts of the 28 Member States since the entry into force of the Design Directive and Design Regulation until August 2017, where claimants also sued on the basis of another IPR namely patents, utility models, trade marks, copyright, and the tort of slavish imitation. The article also determines the proportion of small and medium-sized enterprises and big companies who litigate and their rate of winning. This gives the extent of the use of the EU design right system by type of company and an indication of its success.

Citation

Church, O., Derclaye, E., & Stupfler, G. (2021). Design litigation in the EU Member States: Are overlaps with other intellectual property rights and unfair competition problematic and are SMEs benefitting from the EU design legal framework?. European Law Review, 2021(1),

• Journal Article Type: Article
• Acceptance Date: Jul 31, 2020
• Online Publication Date: Feb 1, 2021
• Publication Date: Feb 1, 2021
• Deposit Date: Aug 20, 2020
• Publicly Available Date: Feb 2, 2022
• Journal: European Law Review
• Print ISSN: 0307-5400
• Publisher: Sweet and Maxwell
• Peer Reviewed: Peer Reviewed
• Volume: 2021
• Issue: 1
• Public URL: https://nottingham-repository.worktribe.com/output/4844427
• Related Public URLs: https://www.sweetandmaxwell.co.uk/Product/Academic-Law/European-Law-Review/Journal/30791372
• Additional Information: This is a pre-copyedited, author-produced version of an article accepted for publication in European Law Review following peer review. The definitive published version Design Litigation in the EU Member States: Are Overlaps with Other Intellectual Property Rights and Unfair Competition Problematic and are SMEs Benefitting from the EU Design Legal Framework? Oliver Church, Estelle Derclaye and Gilles Stupfler, European Law Review, Feburary 2021 is available online on Westlaw UK.