"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"
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27th November 2018 at 15.00
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