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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

Authors

Oliver Church

ESTELLE DERCLAYE estelle.derclaye@nottingham.ac.uk
Professor of Intellectual Property Law

Gilles Stupfler



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.

Files

Derclaye Et Al The Use Of Other IPR And Unfair Competition In Design Litigation FINAL V2 RIS (<nobr>540 Kb</nobr>)
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