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The Importance of Distinctive Signs: An Introduction to Industrial Designs, Collective Marks, Certification Marks and Geographical Indications for SMEs. Guriqbal Singh Jaiya Director, SMEs Division World Intellectual Property Organization (WIPO ). IP for Business Series.

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The Importance of Distinctive Signs: An Introduction to Industrial Designs, Collective Marks, Certification Marks and Geographical Indications for SMEs

Guriqbal Singh Jaiya

Director,SMEs Division

World Intellectual Property Organization (WIPO)

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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IP for Business Series

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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WHAT IS AN INDUSTRIAL DESIGN?

  • An industrial design is the ornamental or aesthetic aspect of an article. The design may consist of three-dimensional features, such as the shape or surfaceof an article, or of two-dimensional features, such aspatterns,linesorcolor.

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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WHAT IS AN INDUSTRIAL DESIGN?

  • Industrial designs are applied to a wide variety of products of industry and handicraft: from technical and medical instruments to watches, jewelry, and other luxury items; from housewares and electrical appliances to vehicles and architectural structures; from textile designs to leisure goods.
  • To be protected under most national laws, an industrial design mustappeal to the eye.
  • This means that an industrial design is primarily of an aesthetic nature, and does not protect any technical features of the article to which it is applied.

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

industrial design s are important branding tools

INDUSTRIAL DESIGNS ARE IMPORTANT BRANDING TOOLS

JUST AS TRADEMARK DISTINGUISH A COMPANY’S CORPORATE IMAGE, GOODS AND SERVICES;

AN INDUSTRIAL DESIGN REFERS TO THE FORM OF NEW PRODUCTS TO DIFFERENTIATE THESE FROM CURRENT PRODUCTS.

COMPANIES CONSTANTLY LAUNCH NEW DESIGNS

Industrial Designs contribute to branding strategy and therefore need legal protection.

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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INDUSTRIAL DESIGN

(2D - Two dimension)

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

graphic designs

INDUSTRIAL DESIGNS CAN DESIGNATE

NATIONAL CULTURE & FOLKLORE

GRAPHIC Designs

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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INDUSTRIAL DESIGNDISNEY 3D CHARACTER - GRAPHIC DESIGN

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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DISNEY DIGITAL 3D DESIGN”

THE NEW CHICKEN STAR CHARACTER

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

the value of a creative design
The Value of a Creative Design
  • MAKES A PRODUCT ATTRACTIVE AND APPEALING
  • TARGET SPECIFIC MARKET SEGMENTS
  • CREATE A NEW MARKET NICHE
  • STRENGTHEN BRANDS
  • LAUNCH A NEW STYLE OF PRODUCTS AND INCREASE CONSUMER’S DEMAND

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

industrial design protection registration
Industrial Design protection> registration
  • Exclusive right to prevent unauthorized copying or imitation by others
  • Return on investment
  • Business asset increasing commercial value of a company and its products
  • Registered design may be licensed (or sold)
  • Encourages fair competition and honest trade practices

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

reasons for protecting designs in eu
Reasons for protecting designs in EU
  • 70% prevent copying
  • 23.4% company policy
  • 20.3% get ahead competition
  • 10.1% prestige
  • 6.5% prevent people think “I copy”
  • 5.8% other

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

practical aspects
Practical Aspects
  • Protecting Industrial Designs
  • Protecting Designs Abroad
  • Enforcing Industrial Designs
  • Other Legal Instruments for protecting
  • Protecting designer’s rights

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

what to remember when seeking protection
What to remember when seeking protection
  • The design must be NEW; and/or
  • The design must be ORIGINAL; and/or
  • The design must have INDIVIDUAL CHARACTER
  • Dual design and copyright protection for some types of designs: Not in all countries; varies a lot

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

remember what cannot be protected
Remember what cannot be protected
  • Designs that fail to meet requirements of novelty, originality and/or individual character
  • Designs dictated by technical function
  • Designs with official symbols or emblems
  • Designs contrary to public order or morality

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

scope of rights
Scope of Rights
  • The right to prevent unauthorized copying or imitation by third parties.
  • Legally exclude all others making, offering, importing, exporting or selling product with a specific design.
  • However an infringement can be legally combated only if the owner has record his design(s) and received a formal certificate of protection.

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

keep in mind
Keep in Mind
  • The time it takes to register a design
  • The cost of registration
  • Keeping design secret prior registration
  • Grace period
  • Who may apply for ID protection
  • Who owns the right over ID

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

protection at home and abroad
Protection at home and abroad
  • The national route
    • each country where you seek protection but a long and expensive process
  • The regional route (for some countries only)
    • countries members of a regional agreement: African Regional Industrial Property Office; Asean IPO; Benelux Design Office; Office for Harmonization of the Internal Market of the EU; Organisation Africaine de la Propriété Intellectuelle
  • The international route
    • Hague agreement - Administered by WIPO (42 countries)

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

using id as a business asset
Using ID as a Business Asset
  • Licensing
    • ADDITIONAL SOURCE OF REVENUE
    • EXPLOITING A COMPANY’S EXCLUSIVITY OVER DESIGN
    • LICENSING CONTRACTS

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

enforcing industrial designs
ENFORCING INDUSTRIAL DESIGNS
  • Responsibility on owner of the ID to monitor, identify imitators/counterfeiters and decide on action
  • Advice of IP lawyer
  • “ Cease and desist” letter to infringer
  • Search and seize order
  • cooperation with customs authorities to prevent importation of infringing good (Books: Cover)

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

ip and marketing
IP and Marketing
  • Collective marks
  • Certification marks
  • GIs

Trademarks

Individual marketing

Joint marketing

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

what is a collective mark
What is a collective mark?
  • Sign ‘capable of distinguishing the origin or any other common characteristics, including the quality’ of the goods/services of different enterprises which use the sign under the control of the registered owner
  • Typically, the owner of collective mark is an association of which those producers are members
  • Registered as such in trademarks registry

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

how does a collective mark work
How does a collective mark work?
  • Regulation of use (art 24 Slov Law)
    • persons authorized to use
    • criteria for membership
    • conditions of use
      • e.g. particular features/qualities of the products
    • sanctions against misuse
  • Authorization to use
    • membership
    • application or automatic
    • comply with the rules
  • Control

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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Thus, function of collective mark is to INFORM the customers :
    • About the origin of the products
      • e.g. ceramic artisan, member of a specific association in Llublijana
    • About a level of quality or accuracy, geographical origin, or other features set by the association

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

benefits for smes
Benefits for SMEs

1.Economies of scale(registration cost, advertising campaign, enforcement, etc.)

2.Reputationacquired on the basis of common origin or other characteristics of the products made by different producers/traders

3. May facilitate cooperation amongst local producers/traders

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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4. Creation of collective mark hand in hand with development of certain standards and criteria (rules) and common strategy

 collective marks can become powerful tool for local development

 harmonization of products/services, enhancement of quality

 no licenses

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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Example: “Interflora”

  • To buy, order and send flowers at almost anywhere in the world
  • > 70.000 florists in 150 countries
  • Emblem : Mercurio with flowers in hand
  • Slogan: “Say it with flowers"
  • Guarantees freshness, flower quality and value of every Interflora relay order

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

what is a certification mark
What is a certification mark?
  • Sign indicating that the goods/services have been certified by an independent body in relation to one or more characteristics
    • composition, manner of manufacture, quality, origin, material, accuracy, etc.
  • Owner is usually an independent enterprise, institution, governmental entity, etc. that is competent to certify the products concerned

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

how does a certification mark work
How does a certification mark work?
  • Regulations of use
    • quality, composition or other characteristics of the goods/services
    • control measures
    • sanctions
  • Authorization to use
    • anyone who meets with the prescribed standards
    • not confined to membership
    • generally: licence agreement (fee)
    • owner not allowed to use
  • Control

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

benefits for smes30
Benefits for SMEs
  • Guarantee for consumers of certain quality
  • Benefit from the confidence that consumers place in users of certification mark
  • Strengthen reputation

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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For example, certify that:

 Product is handmade

 Certain ecological requirements have been respected in the production procedure

No children were employed in the production process

 Products have been produced in specific geographical region

 Products are made 100% of recyclable materials

 Products are made by indigenous group

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

example rugmark
Example: “RUGMARK”
  • Global non-profit organization working to end child labor and offer educational opportunities for children in India, Nepal and Pakistan
  • RUGMARK label is assurance that no illegal child labor was employed in the manufacture of a carpet or rug

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

rugmark
“RUGMARK”
  • To be certified by RUGMARK, carpet-manufacturers sign legally binding contract to:
    • Produce carpets without illegal child labor
    • Register all looms with the RUGMARK Foundation
    • Allow access to looms for unannounced inspections
  • Carpet looms are monitored regularly by RUGMARK
  • Each labeled carpet is individually numbered

 enables origin to be traced back to the loom on which is was produced

 also protects against counterfeit labels

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

what is a gi
What is a GI?
  • Sign used on goods that have a specific geographical origin and possess qualities or a reputation that are due to that place of origin
  • Source identifiers
  • Indicators of quality

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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Tower Bridge,

London

Matterhorn, Switzerland

Eiffel Tower,

Paris

  • In some countries : can also be figurative element
      • E.g. Eiffel tower, Egyptian pyramid
      • E.g. birds, animals associated with a place
  • Most commonly, consists of the name of the place of origin of the goods
      • Country, region, city
      • E.g. Champagne (France), Nuoc Mam (Vietnam)

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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How does a GI work?

  • Authorization to use
    • Each enterprise located in the area has right to use
      • For products originating from that area LINK
      • Possibly subject to certain quality requirements
  • Link between product and place
      • Place where product is produced (industrial products, crafts)
      • Place where product is extracted (clay, salt)
      • Place where product is elaborated (liquor,cheese)

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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Unauthorized persons may not use GIs if such use is likely to mislead the public as to the true origin of the product
      • for not originating from geographical place
      • for not complying with prescribed quality standards
  • Sanctions:
    • Court injunctions preventing unauthorized use
    • Payment of damages
    • Fines
    • Imprisonment

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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Typical examples:
  • Agricultural products that have qualities that derive from their place of production and are influenced by specific local factors, such as climate, type of soil, altitude, etc
    • E.g. wine, champagne, cognac, port, sherry, whiskey
    • E.g. cheese, yoghurt
    • E.g. olive oil, ham, potatoes, honey, rice

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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Typical examples:
  • Also: handicrafts and medium-tech goods
    • E.g. ‘Hereke’ (Turkey) for carpets
    • E.g. ‘Limoges’ (France) for porcelain
    • E.g. ‘Swiss’ for watches
    • E.g. ‘Arita’ (Japan) for ceramics

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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Example:“Talavera de Puebla”

  • Considered to be one of the finest ceramics in Mexico
  • Handmade and painted by hand
  • Historical linked with Arabic culture
  • Typical are the geometric designs in blue color painted on a white background
  • The design and colours of the artwork are created following traditional rules and know-how

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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How is a GI protected?

  • National
  • Regional
  • International

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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Protection on national level
  • Specific title of protection
    • Registration with IP office (Russia)
    • Decree (France)
    • Special laws for the protection of GIs (India)
  • Certification marks or collective marks
    • Cert: e.g. in the U.S.A.: Darjeeling, Swiss, Stilton
    • Coll: e.g. Japan; agricultural label in France
  • Passing-off,Unfair Competition, Consumer Protection laws
    • If reputation + misleading
    • Pass off: e.g. Scotch whisky – Peter Scot in India
    • Cons prot: e.g. ‘made in Japan’; Egyptian cotton

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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Protection on international level
  • No legally binding international register for all GIs
  • Bilateral agreements
    • e.g. EU-Bulgaria for wine names
  • International treaties

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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International treaties
    • TRIPS:
      • minimum standard of protection for WTO members
      • if misleading or act of unfair competition
      • enhanced level of protection for wines and spirits
      • no protection if GI is generic term for the goods in the member state
    • Lisbon:
      • international registration system
      • member countries must prohibit imitations, including terms like “type” or “kind”
      • cannot become generic, as long as protected country of origin

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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Benefits for SMEs

  • GIs shift the focus of production to quality

 increased production

 local job creation

  • Reward producers with higher income in return for efforts to improve quality
  • Provide consumers with high-quality products whose origin and mode of production is guaranteed

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

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Disadvantages

  • Inconsistent protection
    • Absence of GI system in many countries
    • Civil law
      • Registration
      • Only similar goods
    • Common law
      • Repution enough (e.g. Champagne in India)
      • Also dissimilar products
    • Additional protection for wines and spirits
  • GIs may become generic terms (e.g. Chablis in America)

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO

thank you

Thank You

e-mail: guriqbal.jaiya@wipo.int

http://www.wipo.int/sme/

The Small and Medium-Sized Enterprises (SMEs) Division of WIPO