Martin-Tardivat.net

The purpose of Article 3 CDR is to explain what can be protected as a design, not to indicate how many designs can be included in an application.



The fact that a Community design application includes one or more designs therefore has nothing to do with the legal definition of designs contained in Article 3 CDR: if the design depicts the appearance of a product, it certainly falls within the definition contained in that provision, since it is irrelevant – to this end – whether the design (that is, the product into which it is incorporated) is adapted into more than one variant.

For this reason, the Invalidity Division incorrectly invalidated the Community design in this case.

Since in fact the design depicts the appearance of a radiator, it satisfies the requirements contained in Article 3 CDR and could not be invalidated. In the present case, the only irregularity committed by the holder consisted in having presented a single rather than a multiple application.

But this was certainly not an irregularity sanctionable by invalidity, either total or partial, because such an eventuality is not provided for under Article 25 CDR. The file was remitted to the Invalidity Division for examination of the grounds of invalidity contained in Article 25(1)(b) CDR, with particular reference to the alleged lack of individual character (Article 6 CDR).

The European Union trade deficit for clothing in 2006 was a whopping €33.7 billion. From 1994 to 2006, the total production volume for clothing within the 27 countries which now make up the EU decreased by some five percent each year. Still, the EU counts some 1.5 million people working in this sector, generating a value added of €22 billion (about 1.2% of the total value added of EU-27’s industry). Over the coming years, European manufacturers will probably be forced to further downsize their production volume in favor of niche products with a high value added.



Some representatives of the European clothing industry are calling for a stronger worldwide intellectual property (IP) protection for fashion designs because they fear major losses from counterfeiting. Yet some modern economic theories consider competition to include a dynamic interaction between innovation and imitation: innovation generates superior products; imitation makes them available to a greater number of consumers, so a lively imitation process is crucial for dynamic competition. Is this reasonable?



To answer, we must look at the time taken by the imitator to catch up with the innovator. Does the innovator, after launching the innovation, have sufficient time to amortize development costs and generate profit? If the time is too short, then innovators may lose their motivation to generate further innovations, and prolongation through legal measures makes economic sense. However, the fashion industry is a particular case.

Many fashion aficionados cannot afford the original items created by Chanel, Dior, Versace, etc. Instead, they buy cheaper copies, fully aware that these are not originals. The sale of these counterfeit products cannot be equated to loss of sales of the originals as they primarily target consumer groups that are not in the market for the originals. Certainly, plagiarism can confuse consumers and, in case of inferior product quality, damage the designer’s good reputation. Nevertheless, it could be argued that counterfeit products bring fashion labels more publicity, stimulating nascent fashion trends and increasing demand for the originals. Gabrielle “Coco” Chanel was not alone in her assertion that imitation reflects the highest form of flattery. In this context, what is the relevance of design law to the European fashion industry?


Intellectual property rights for design

Design protection can only be sought when the intangible creative idea – e.g. a novel pattern - is embodied in physical form, such as in a specific fabric or item of clothing.



RCD 19054

A creative idea, for example for a certain flowered cloth pattern, is intangible and can be reproduced without any asset erosion. Therefore, exclusive rights to specific physical things, like the flowered cloth pattern, would not suffice to grant the design IP protection. The intellectual idea itself must be protected. This can only be achieved by prohibiting the imitation of the physical things through which we perceive the intellectual good. The ban of imitation for a certain time period enables people to reap where they have sown. Without that prospect the incentive to sow is diminished.

On the other hand, since we can only perceive intellectual goods if they are incorporated in physical things, non-materialized ideas cannot be protected. As a consequence, fashion styles like mini-skirts or jeans in general as much as manufacturing processes, such as innovative techniques to cut, sew or print clothing, which allow the manufacturing of a wide range of different physical results, cannot be protected as such under design law. Protection can only be sought as far as the idea is materialized in a specific physical thing.

From royal privileges to the Community design regulation

The development of European design law goes hand in hand with the history of the textile industry. In the 15th century, the French King granted exclusive rights, or privileges, for the fabrication of textiles. A government ordinance penalized the counterfeiting of weaving patterns for the first time in 1711 in Lyon. In England and Scotland, the first statute concerning the protection for designs was initiated by textile producers in 1787. In 1876, Germany issued a law concerning the copyright on patterns and models, again mainly as a consequence of requests of the textile industry. More recently, the drive to harmonize Europe’s design laws led to the European Regulation on Community designs, which came into force in 2002.5

The European Community Design Regulation protects only designs that are new and have individual character. The degree of visual difference from pre-known designs, resulting from one-to-one comparisons and examined from the perspective of an informed user, is the only decisive criterion as to whether or not a design can be protected. Differences between two designs which are of minor importance to a casual observer, such as the arrangement of buttons, the shape of a collar or the length of a skirt, may produce a different overall impression in the eye of an informed fashion user.6

To register or not to register

Few new designs on the market are truly exceptional in form.

Fashion designers are actually quite limited in their scope for creativity: clothing must fit the human body; and the general social need to conform to accepted dress codes tends to lead to uniformity. Thus few new designs on the market are truly exceptional in form. But since difference is assessed by one-to-one comparisons, a single distinguishing feature - such as an embroidered jeans pocket, an oversized zipper or a dominant print - may be enough to produce a unique overall impression and justify the protection either of the extraordinary feature or of the whole item.

In 2007, WIPO registered only 29 international designs (2.5% of total registrations) under class 2 of the Locarno Classification (clothing and haberdashery) through The Hague System, while the EU Office for Harmonisation in the Internal Market (OHIM) registered 7’421 (9% of total). Yet, most of the designs registered by fashion houses are not for clothing, but for accessories – watches, bags, sunglasses, etc., which fall under several different Locarno classes – an important source of income for fashion labels. The majority of fashion designers consider that, with fashion seasons lasting only a few months, the five-year minimum protection period offered by these registration systems is not appropriate for often ephemeral fashion designs, and that their time and money would therefore be better spent on creating new designs than on registration.

European designers do have an effective solution in the unregistered Community design. This is obtained without any formalities simply by making the design available to the public, and lasts for three years. Since most designers become concerned with protection only after becoming a victim of counterfeiting, the unregistered Community design provides a welcome alternative to registration.

Design vs trademark protection

In conclusion, design registration tends to be appropriate primarily for protecting exceptional designs or features, or those which might be expected to become long lasting icons. However, if a design is counterfeited, the endless numbers of designs on the market make it hard to detect violations. Instead of design protection, most fashion designers rely much more on their fashion labels, applied directly on their products and often protected under trademark law. Fashion labels make it easier for designers to detect imitations and help fashion users to identify preferred items. Fashion houses invest large amounts in advertisements to promote the attributes of their trademarks in order to attract fashion users. But it is no surprise that counterfeiters also try to free-ride on the sales-promotional effects of trademarks by copying both the designs and the corresponding labels. For this reason, major fashion designers incorporate special treated yarn or other security elements into their labels, so facilitating the distinction between originals and imitations.

"Marcel Breuer's Wassily Chair, which he designed in 1927"

It is not surprising that consumers attach particular importance to the visual appeal of shoes and clothes they buy, or the look and style of gadgets or cars. The appearance of an article certainly counts in making a first impression on a customer, and often plays a decisive role in the final decision to buy or not. Smart businesses take note of changing consumer tastes and choices in order to develop and deliver better products, both in functional and aesthetic terms. Design, therefore, makes a critical contribution to overall corporate business strategy and success.



"The Volkswagen Type 1, more commonly known as the Beetle or Bug, is an economy car produced by the German auto maker Volkswagen from 1938 until 2003."

Effective use of design adds value to a product by creating variety in a world of commodities. Attractive designs help in differentiating between competing products and also in customizing and segmenting the market for a particular product, ranging from ordinary items such as locks, cups and saucers to potentially expensive items such as watches, jewelry and cars.



"Hermes' Kelly bag (1950')."

Creating higher perceived value through aesthetically pleasing industrial designs helps build trust and lasting customer relationships which translate into higher market share, better prices and bigger profits.

Many companies have successfully redefined their brand image through strong focus on product design. Most senior managers recognize that design excellence brings stronger brand recognition and better profitability. Forward-looking businesses create and choose appropriate trade names and logos to protect their corporate identity, brand image and the resultant competitive advantage, and also devote attention, in equal measure, to the creation and management of distinctive designs as part of their corporate strategy for identity and brand management.

Design Management Basics

First and foremost, diligent design management requires cost-effective protection of valuable designs to prevent the look of the product from becoming a commodity and freely imitated in less expensive look-alike products. This entails timely registration of new, novel, or original designs at the national or regional design office.

The terms “design”, “industrial design” or “design patent”, when used in intellectual property law and practice, have a specific connotation. In most cases they refer to the visual appeal – that is, the features of shape, configuration, pattern or ornament, or any combination of these features – of a finished article made by hand, tool or machine, as opposed to functional features which may be protected by other types of intellectual property rights, such as patents, utility models or trade secrets. In many countries, the requirement of visual appeal of an article of manufacture or handicraft has been modified to that of perceptible features of appearance, and the rule of novelty has been replaced or supplemented by an individuality requirement.

Designs may be two or three-dimensional. Examples of two-dimensional designs are textile, wallpaper and carpet designs, and of three-dimensional ones are the shape of a toy, package, car, electrical appliance, mobile phone, piece of furniture or the shape and ornamentation of kitchenware. In certain circumstances, the features constituting a design may be the color, texture or material of an article. In some countries, computer icons have recently been protected as industrial designs.



"See www.raymondloewy.org"

Legal Options for Protection Good design strategy must compare the various alternatives for protecting industrial designs, as there are different legal ways to prevent unscrupulous competitors from unauthorized copying. Legal options may include one or more of the following: protection under industrial design law, copyright law, trademark law – as a two or three-dimensional mark – and under unfair competition law. In some countries, the protection of these different laws may be mutually exclusive, in others it is cumulative to varying degree. It is advisable to seek expert advice. Industrial design issues affect various types of business decision. For example, the type of protection and its cost or effectiveness may affect: - which details should be disclosed to the designer, especially when the designer is employed by a contractor;
- whether to undertake design development entirely in-house, to contract or commission an outside agency or to do it jointly;
- timing of the initial use of a new design in advertising, marketing or public display in an exhibition;
- if and when to seek or continue to maintain design registration;
- if and when to initiate action against unauthorized/infringing acts of competitors, counterfeiters or importers;
- if and when to license or partially assign a design; and
- if and when to register the design in other markets for export or for exploring the potential of entering into strategic business alliances, joint ventures, setting up wholly owned subsidiaries, etc.




"Boom Bag"

Nature of Design Right

Most countries require registration of an industrial design as a condition for protection. Registration gives an absolute right that excludes all others from using the design for making, importing for trade or business or selling any article in respect of which the design is registered, and to which the design or a design not differing substantially from it has been applied. This right is for a limited period of time and subject to renewal. The maximum term of protection is 10 to 25 years, depending on national legislation. In many countries, an industrial design cannot be registered as such if it has been used or published before applying for design registration.

Only the owner of a design, namely the creator/author (or depending on the legislation and the context, his employer) or his successor in title, may apply for and obtain registration for an industrial design. If a number of persons have worked together to create a design, then they must file for registration as joint owners – unless all of them are working under contract or on commission. While the application must be filed with the office competent for the country or region for which protection is sought, the Hague Agreement Concerning the International Deposit of Industrial Designs offers the possibility of obtaining protection for industrial designs in a number of countries through a single deposit made with WIPO.

Basic information for filing an industrial design application and the possibility, where available on request, of the deferred publication of a design, which may be critically important for marketing fashion articles such as textiles, clothing or jewelry, can be obtained from the respective national or regional office. Hiring the services of a qualified agent is advisable for fully unleashing the power of a design in marketing, sales and other business transactions, including its valuation as an intangible asset.



See here YSL' talent for cloth design

The development of European design law goes hand in hand with the history of the textile industry. In the 15th century, the French King granted exclusive rights, or privileges, for the fabrication of textiles. A government ordinance penalized the counterfeiting of weaving patterns for the first time in 1711 in Lyon.

In England and Scotland, the first statute concerning the protection for designs was initiated by textile producers in 1787.

In 1876, Germany issued a law concerning the copyright on patterns and models, again mainly as a consequence of requests of the textile industry.

More recently, the drive to harmonize Europe’s design laws led to the European Regulation on Community designs, which came into force in 2002.

The European Community Design Regulation protects only designs that are new and have individual character. The degree of visual difference from pre-known designs, resulting from one-to-one comparisons and examined from the perspective of an informed user, is the only decisive criterion as to whether or not a design can be protected. Differences between two designs which are of minor importance to a casual observer, such as the arrangement of buttons, the shape of a collar or the length of a skirt, may produce a different overall impression in the eye of an informed fashion user.

It was the ultimate face-lift: a sporty red Ferrari F355 on the outside, a used Pontiac engine inside.

That was enough, apparently, to entice wannabe Ferrari owners to plunk down €20,000, or about $30,000, for the chance to own an approximation of the real thing.

A few days ago, Italian tax police, the Guardia di Finanza, busted up a ring of auto-body shops across the country that were trafficking in one of the most high-end and high-priced counterfeit cars of all time.

The ring operated in a dozen cities from near the Alps in the north to Sicily in the south. Tax police rounded up seven completed fake Ferraris, as well as another seven that were still being decked out. Some of the counterfeit cars had already been sold. They also seized numerous spare parts, some of which were genuine Ferrari.

Copying a Ferrari seems particularly brazen. The company makes about 6,000 cars a year, and waiting lists for new models can run years. Most cost more than $200,000, but prices can soar far beyond that depending on the level of customization. The company boasts that its engineering (much of which it also uses on its championship Formula One racing team) is second to none.

Last year, fake Ferraris were nabbed by the tax police in Sardinia and Rome. In 2006, the European Commissioner for Justice protested publicly that fake Ferraris were popping up in China.

In this respect, a few days ago, a fake Ferrari sports car made in Thailand has become the centre piece of an exhibition in Brussels warning against the dangers of pirated goods.

The Ferrari P4 - of which only three were made, in 1967 - was made in a back street factory in Thailand and is powered by a Subaru engine.



The latest figures from the World Customs Organization show that all types of counterfeits result in about $500 billion to $600 billion in lost sales annually, which is about 5% of global trade.

Karen Millen Ltd. -v- Dunnes Stores & Anor.
21 December 2007

High Court of Ireland Decision

The designs at issue are the following ones:

The plaintiff (Karen Millen Ltd.which carries on the business of producing and selling women’s clothing) claims that it is the holder of an unregistered Community design for each of the designs referred to above and that the defendants (“Dunnes Stores” which has a retail business in women’s clothing) have infringed same in the production and sale of the items referred to above.

Ms Justice Finlay Geoghegan said: "The use made (by Dunnes of the items) is an infringement of the plaintiff's unregistered community design and it is entitled pursuant to Article 19 of the regulation to prevent the defendant making use thereof."

It is the first case of its kind to be heard in Ireland under an EU regulation protecting new and individual designs.

One of the key preliminary matters decided was that of the onus of proof.

"In summary the conclusions which I have reached on the burden of proof in an action for infringement of an unregistered Community design pursuant to the Regulation are:

(1) Where, the plaintiff claims infringement of an unregistered Community design, the legal onus of proof is on the plaintiff to establish a right to the unregistered Community design and its infringement.

(2) There will normally be two distinct aspects of the claim to the right: the claim that the design right vests in the plaintiff and the claim that the design is an unregistered Community design.

(3) The onus of proving that the design right vests in the plaintiff is, and remains, on the plaintiff until proved in accordance with the normal civil burden of the balance of probabilities. Article 14 of the Regulation is relevant to how that vesting may be proved.

(4) Article 85(2) of the Regulation specifies the evidential burden which must be discharged by such a plaintiff in order that the Court treat the design as a valid unregistered Community design. That evidential burden is:

(i) evidence that the design has been made available to the public within the Community within the meaning of article 11(2); and (ii) evidence that the first date upon which it was so made available is within three years of the date upon which the plaintiff claims the right to protection to subsist for the purposes of the alleged infringement; and (iii) identification of those elements of the design which the plaintiff contends means that the total design produces a different overall impression on an informed user.

(5) If the Court finds that the plaintiff has discharged the evidential burden referred to in para. (4) above, then the Court treats the design as a valid unregistered Community design subject to the defendant’s challenge(if any ) to its validity.

(6) Where such a challenge is made(either by plea of invalidity or counterclaim) the onus shifts to the defendant to establish on the normal civil balance of probabilities that one or more of the grounds for invalidity specified in article 25(1) is made out. Where, as on the facts of these proceedings, the defendant denies validity by reason of a failure of the designs to meet the requirements of article 6 for individual character, then the burden of establishing that the design does not meet the requirements of article 6 is on the defendant.

(7) If the defendant’s plea of invalidity succeeds the Court ceases to treat the design as a valid unregistered Community design and no issue of infringement arises. If the defendant’s challenge to validity fails, the Court continues to treat the design as a valid unregistered Community design and moves to consider infringement. The burden of proving the infringement is on the plaintiff."

We will revert to you with regard the test of the "impression on the informed user" but, meanwhile, you may have a look at our post on Proter & Gamble case.

Registering 3D marks is still a problem before the OHIM.

Philip Morris Products filed the following CTM application:

The Examiner, the Board of Appeal and then the Court of First Instance have found the mark at issue as non distinctive since it was "too close from what consumers may expect to find as a cigarette box".

The main points of the decision (in French) are the followings ones (we will translate them later on):

"En l’espèce, bien que la forme de la marque demandée ne corresponde pas à celle de la forme standard des paquets de cigarettes, c’est-à-dire un parallélépipède rectangle, elle est néanmoins proche de cette dernière forme ainsi que de certaines des variations du paquet standard se trouvant habituellement dans le commerce. La seule différence entre la forme demandée et la forme standard réside dans la forme des deux faces latérales. S’agissant de la forme demandée, ces dernières sont entièrement courbées et, ainsi qu’il a été relevé au point 59 ci-dessus, il n’y a pas d’arêtes longitudinales entre ces deux faces courbées et les deux faces planes verticales. S’agissant de la forme standard, les deux faces latérales sont planes et parallèles. Il en résulte que la marque demandée ne diverge pas de manière significative de la norme ou des habitudes du secteur.

Partant, c’est à bon droit que la chambre de recours a considéré, aux points 17 à 19 de la décision attaquée, que la marque demandée ressemblait de manière trop évidente à la forme la plus courante de ce produit et que, prise dans son ensemble, la marque demandée ne réussissait pas à se différencier substantiellement des formes ordinaires des produits concernés.

Cette appréciation ne saurait être remise en cause par l’argument de la requérante concernant la perception tactile des paquets de cigarettes par le consommateur. Ainsi que l’OHMI l’a relevé lors de l’audience, il résulte des modalit és de vente des cigarettes au détail que, en pratique, le consommateur n’a pas la possibilit é de toucher le paquet avant l’achat de celui-ci. En effet, les paquets de cigarettes sont normalement vendus individuellement dans des bureaux de tabac et dans des distributeurs automatiques. Il résulte notamment des restrictions d’âge sur la vente des cigarettes que, dans le cas des bureaux de tabac, les paquets de cigarettes sont normalement présentés à une certaine distance du consommateur qui doit sélectionner le paquet de cigarettes sans le toucher et qui le reçoit ensuite directement du buraliste lorsqu’il effectue son paiement. Dans le cas des distributeurs automatiques, le consommateur reçoit son paquet directement de la machine après l’avoir sélectionné et avoir inséré sa monnaie.")

Please note that the application at issue hab been filed only for "cigarettes" in class 34.

An appeal has been brought on 16 November 2007 by Philip Morris Products SA against the judgment of the Court of First Instance.

By its appeal, the appellant claims that the Court of First Instance infringed Articles 4 and 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark. In this respect, it complains, first, that the Court of First Instance based its assessment on a bias against the category of marks in which the mark applied for falls. In finding that consumers are not in the habit of making assumptions about the origin of goods on the basis of their shape or of the shape of their packaging, the Court of First Instance made a factual finding which has no scientific foundation whatsoever and misconstrues the human perception of signs in general, and of shapes in particular.

Second, the appellant complains that the Court of First Instance carried out an incorrect legal analysis of the relevant public's perception of the mark. That error arises, on the one hand, from the fact that the Court envisaged use of the mark only through its incorporation into a packet of cigarettes, although the shape of packaging for a given product can be perceived by the public in a multitude of other forms, such as graphic or three-dimensional representations of the mark in advertising material. The error of assessment arises, on the other hand, from the fact that the Court of First Instance reduced the concept of a mark to its part which is perceptible by a prospective purchaser at the moment immediately prior to his purchase, whilst the public concerned by a mark is composed of all those who may be faced with it in the course of normal use of the mark, which occurs both during the advertising of the product before it has been purchased and during use or consumption of the product after it has been purchased. The appellant claims, thirdly and lastly, that the grounds of the judgment under appeal are contradictory.

We will rely on this decision (once it is published) for further comments on 3D marks and their registrability before the OHIM.

P.S.: Note that the "real" product has been accepted and registered as a CTM:

We are today returning to a questionable decision issued on October 10, 2007 between The Procter & Gamble Company and Reckitt Benckiser (UK) Limited by the Royal Courts of Justice (London) and dealing with Community Designs.

The decision can be found here.

The involved designs are the following ones:

The latter had been filed as a Community Design (RCD) under No. 000097969-0001.

At trial, the judge found that Airwick infringed P&G's Febreze design.

On appeal, Lord Justice Jacob allow the appeal of Reckitt Benckiser on infringement since "the similarities between the products are at too general a level for one fairly to say that they would produce on the informed user the same overall impression. On the contrary, that user would get a different overall impression".

You will note from the decision the astonishing set of mental exercises the judge submitted himself.

In this respect, it has to be born in mind that Council Regulation No 6/2002 of 12 December 2001 on Community designs states in Article 10 (Scope of protection): "The scope of the protection conferred by a Community design shall include any design which does not produce on the informed user a different overall impression".

Accordingly Lord Justice Jacob has stressed that the impression which would be given to the informed user by the Air-Wick product is different from that of the registered design. Even though the same features are found in both, there are clear differences between the two sprayers resulting from the different mode of their execution:

- the Febreze sprayer is smaller, has a slightly larger diameter and so looks more compact;

- the head of this sprayer is shallower but also broader, so that the Febreze sprayer fits the hand differently than the Airwick sprayer (with the Airwick sprayer, which has the considerably narrower head, there is a feeling that it could slip out of the user's hand);

- in contrast to the Airwick sprayer, the metal can of the Febreze sprayer tapers upwards, so that the waist begins lower down than in the Airwick sprayer;

- the "train" goes down much further in the Febreze sprayer, so that the lower boundary of the plastic part echoes the angle of the head part far more markedly than in the Airwick sprayer;

- the shape of head too is different: while the head of the Febreze sprayer – to draw a comparison from the animal kingdom – is reminiscent of a snake's head, the shape of the Airwick sprayer head is like a lizard's head.

The problem, in our view, stems from the fact that it is very difficult not to see Airwick as a copy of Febreze even for the the informed user. In other words, plaintiffs would certainly think twice before suing anyone for registered Community design infringement unless there is a total correspondence between the protected design and the alleged infringing product.

The design or shape of a product can be synonymous with the branding and image of a company and can become an asset with monetary value that could increase. If you do not apply for protection others may benefit from your investments.

Several remedies can be used and sometimes cumulated to achieve such a protection.

Trademark registration is the easiest and perhaps best way to protect the trade dress of a product in France. Indeed, according to our Intellectual Property Code, "figurative signs such as devices, labels, seals, selvedges, reliefs, holograms, logos, synthesized images, shapes, particularly those of a product or its packaging, those that identify a service, arrangements, combinations or shades of color" may be protected as a trademark.

The shape of the bottle of Perrier water and the shade of the yellow Kodak color are protected as trademarks in France. To be registrable, such a trademark must of course meet the general conditions of validity, namely be distinctive. In addition, it must not be :

- a sign which consists exclusively in the shape imposed by the nature or function of the goods,
- a shape which is necessary to obtain a technical result,
- a shape which gives their substantial value to the goods.

It is to be noted that until now the French practice is much more liberal than that of other European countries and of the OHIM since single shades of colors, combinations of colors and 3D marks do not face any objection for non distinctiveness from the Trademark Office.

If the shape gives their substantial value to the goods, the trade dress should be registered as a design. Under the new provisions of the law resulting from the European Community harmonization Directive, "is protected by a design the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, textures and/or materials of the product itself and/or its ornamentation".

In this framework, "is considered as a product any industrial or handicraft item, including inter alia (…) packaging, get-up, graphic symbols and typographic typefaces (…)".

Design protection is now subject to two conditions being met : the design has to be new and must have an "individual character". This means that the overall visual impression produced by the design on the informed user must differ from that produced by any prior design. The design protection extends only to non functional features. In addition, to be novel a design application must be registered within one year after its disclosure.

If the get-up of the product has been disclosed more than a year ago, so that no design application can be filed anymore, protection may be claimed on the basis of copyright.

Indeed, copyright protection is afforded to all works of the mind, whatever their kind, form of expression, merit or purpose, provided that they are original in character. The advantage of copyright in France is that the author of an original work or his rightful claimants shall enjoy in that work exclusive rights stemming from his creation, without formality requirement.

A second way to achieve a similar protection to trade dress against copy consists in relying upon regulations on general tort to bring an action for unfair or parasitic competition. Such an action implies that three conditions are met, namely a fault committed by one defendant, a damage caused to the plaintiff and a link establishing that the damage results from the fault.

Thus, there still is a mean of protection, even when the involved trade dress cannot be protected by design registration or copyright.

Finally, a last way to prevent third parties from copying some unique features of the "feel and look" of a product is the tort action for parasitism. This remedy has been created by the case law to condemn those who try to take advantage of the work and investments of others or to catch their notoriety to divert them to their own benefit, avoiding so investment of time and money for creation and promotion.

The characteristic and advantage of such an action is that it applies to non competitors.

In conclusion, although there does not exist in France a single legal basis for the protection of the trade dress of products, there are several strong remedies, even though it is sometimes necessary to cumulate them to take action successfully.