You have just received a notice of infringement following the production of an item. Your competitor claims to own the rights to the design or model of the object in question. Defend yourself with an intellectual property lawyer.
What is a design or a model?
The Intellectual Property code defines a design as “the appearance of a product or a part of a product characterized in particular by its lines, contours, colors, shapes, textures, or materials. These characteristics can be those of the product itself or of its ornamentation.”
The product is understood as an industrial or handicraft item under pure or applied art.
What is infringement of a registered design or model?
Infringement includes making, offering, putting on the market, importing, exporting, using, or being in possession of products that incorporate a pre-existing and protected design or model.
Infringement is appropriating a design already in existence (whether registered or not) so that the overall visual impression is indistinguishable.
What do you do if you receive a letter of formal notice of infringement?
Take the scenario we mentioned earlier: you have received a letter of formal notice of infringement, and the sender demands that you stop all operations associated with the product in question. There are ways to defend yourself.
First, if the sender claims to hold a title of industrial property after filing with the INPI, you should ensure that this is accurate and that the design was registered. As long as the application for the design has not been published in the Official Bulletin of Intellectual Property, it is not enforceable against you.
Besides the formal aspect, the designed that claims protections may not actually meat the substantive requirements of the intellectual property code, which would render any registration invalid.
Therefore, a design must be new, meaning that it is not identical to a previously disclosed design. It must also bear a different overall visual impression from previously disclosed designs. Depending on the products in question, the judge might take into account the creative freedom of the designer.
The concept of disclosure is very important because a design’s novelty and individual character are assessed before the filing date.
Protections for designs are highly specific and complex, requiring the expertise of an intellectual property lawyer at the outset fo litigation. Picovschi Lawyers is committed to fighting counterfeiting and infringement but also passionate about defending free competition.
