You received a letter of formal notice for infringement of a design, and the caller requires you to stop the operation of the associated product. There are ways to defend yourself.
What is a registered design?
The Intellectual Property Code defines design as "the appearance of a product or part of a product characterized in particular by its lines, contours, colors, shape, texture or materials. These features may be those of the product itself or its ornamentation. "
The product should be understood as any industrial or handicraft item under pure art or applied art.
What is the infringement of a registered design?
The acts of infringement are manufacture, supply, marketing, import, export, use, possession for the purpose of a product incorporating a design and pre-existing model.
Counterfeiting appreciates against the existence of a prior design, whether registered or not (in this case the focus will be less protection), and the overall visual impression it produces on the casual observer (legal fiction).
Receipt of a letter of formal notice of infringement: what is the defense?
You received a letter of formal notice for infringement of a design, and the caller requires you to stop the operation of the associated product. There are ways to defend yourself.
First of all, if the caller claims to be the holder of an industrial property after it is filed with the INPI (National Institute of Intellectual Property), should ensure that this deposit will be invoked. Indeed, as the application for registration of the design has not been published in the Official Bulletin of Intellectual Property (BOPI), it is not binding.
In addition to the formal aspect, the design for which the right is claimed may not the substantive requirements of the Code of Intellectual Property, making it invalid.
Thus, a design must be new, that is to say, not be identical to a design previously in existence. It must also have its own character which means inspire the casual observer a different overall visual impression from that produced by any design previously disclosed. Depending on the products in question, the judges take into account the creative freedom of the maker of the design.
The concept of disclosure is also very important because of the novelty and individual character required in order to appreciate the drawings and understand disclosure prior to the filing.
The law of designs is very specific and complex, requiring the intervention of an intellectual property lawyer at the outset of litigation. Picovschi attorneys are certainly at the heart of the fight against counterfeiting, but are also committed to defend free competition.
