The entry of the USA and Japan to the Hague System: International design protection gains significantly in importance

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What has been announced for a long time and was eagerly expected by international legal experts, Japan and the USA have now put into practice. With effect as of 13 May 2015, they signed the Hague Agreement concerning the international registration of industrial design and models (Hague Agreement).

From now on it will be possible to obtain, with a single design registration at the WIPO in Geneva, the design protection in countries such as Switzerland or the EU member states, which have been signatories of the Hague Agreement for some time, protection for product design of any kind in Japan and the USA as well. When compared to the individual national design registrations in each of the countries, this will save significant administrative effort and especially costs.

Until now there have been 62 contracting parties to the Hague Agreement, including two international communities (the European Union and the African regional intellectual property organisation). With the joining of two major industrial nations like Japan and the USA, the Agreement and thereby the international design protection significantly increase in attractiveness. Already in the year 2014, after the accession of the Republic of Korea, an increase of 10 % design registrations compared to the previous year could have been announced. This trend can be expected to continue and even to increase. This even in light of the fact that in the meantime, also China has declared its intention to enter into it soon.

However, it needs to be noted that in the USA and Japan, in contrast to Europe, the comprehensive examination of the protection requirements of a design (foremost of the novelty) is scheduled ex officio, and will be furthermore executed by both countries on international design registrations through the Hague system. These circumstances have to be taken into consideration at the time of the design registration as it needs to satisfy the provisions of the respective jurisdiction. For example, it needs to be mentioned in reference to the USA, that it stipulates in addition to the illustration for the protected designs there is a “Duty of Disclosure” and it is moreover only limitedly permitted to submit several designs together in one application. Therefore, besides the illustration, a description of the design will always be required and in regard to multiple applications, meaning the combining of several individual different designs out of one product category in one application, caution should be taken.

On a positive note, it needs to be mentioned the automatic adjustment of the American maximum term of protection from 14 to a new period of 15 years, which corresponds with the Hague system. In Japan it is 20 years. Registration for the initial term of protection provided for international design applications of 5 years can be prolonged for another 5 years (in some countries up to a maximum of 25 years, e.g. in Switzerland or the EU).

The simple, quickly obtained and additionally cost-effective design protection has become increasingly crucial in recent years and it has developed into a powerful alternative and complete patent protection for all product lines. We recall the proceedings of Apple/Samsung in front of the LG Dusseldorf in 2011, where Apple, based on a design registration, was successfully hindered from entering the market with at the time the new Samsung Galaxy Tab 10.1 in Germany by its biggest competitor Samsung (Apple vs Samsung: A “preliminary win” for the iPad design; in: MLL Newsletter Issue December 2011). Now that the attractiveness of the international design protection based on the accession of Japan and the USA has increased, a design registration in the international context should also always be considered when a company enters into the market with a new product design.

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