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Excluding Designs (and Shape Marks) - Where is the CJEU going?




Research Seminar Series: Intellectual Property & Institute for the Study of European Laws (ISEL)

Guest Speaker: Professor Uma Suthersanen, Queen Mary University of London

The EU design regime adopted a new “market-based approach”, which protects both functional and aesthetic designs. Nevertheless, it is recognised that certain types of functional designs can give rise to unduly restrictive effects on legitimate competition, within certain product sectors. Accordingly, Art.8(1) Community Design Regulation expressly excludes "features of appearance of a product which are solely dictated by its technical function”; the paramount rationale being the protection of competitive innovation. The past decade has spawned three separate interpretations of the functionality exclusion, the most paradoxical being the linkage drawn between aesthetic considerations and functional presence. A further layer of analysis derives from the functionality exclusion within the Community Trademark Regulation. A final challenge to juridical coherence is the EU Court’s earlier Flos decision widening national copyright law to embrace all sorts of designs, and presumably functional designs. It is submitted that the CJEU's decision in Doceram (2018) is perhaps the right approach - whereby it rejects all three previous interpretations, but weaves one which marries them all. The approach is also logical if one accepts that the functionality exclusions within design, trade mark and copyright laws must be interpreted in pari materia within an increasingly-aligned EU IP law.

Uma Suthersanen is a Professor in International Intellectual Property Law at the Centre for Commercial Law Studies of Queen Mary University of London. She holds degrees in law from the National University of Singapore (LL.B) and Queen Mary (LLM and PhD). She held a Herchel Smith Fellowship, and a Financial Times Law & Tax Fellowship at Queen Mary. She is also a Co-Director of the Queen Mary Intellectual Property Research Institute, and an Academic Co-Director of the LLM in Intellectual Property Law programme. She is the current editor of Sweet & Maxwell’s European Copyright and Design Reports, and a founding/current editor of Queen Mary Studies in Intellectual Property. She is a specialist editor on EU Copyright Law in Copinger & Skone-James on Copyright (Sweet & Maxwell, 17th Edition, 1st Supplement, 2018).

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When and where

3.00pm - 5.00pmTuesday 27th November 2018

R203 Franklin Building City, University of London 124 Goswell Road London EC1V 7DP United Kingdom

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City, University of London
Northampton Square
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0207 040 3410

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