16 TEXT AND COMMENTARY Section 2: Definition of an Industrial Design (1) Any composition of lines or colors or any three-dimensional form, whether or not associated with lines or colors, is deemed to be an industrial design, provided that such composition or form gives a special appearance to a product of industry or handicraft and can serve as a pattern for a product of industry or handicraft. (2) The protection under this Law does not extend to anything in an industrial design which serves solely to obtain a technical result. The definition of an industrial design in subsection (1) corresponds somewhat closely to that contained in Article 1 of the Algerian Ordinance No. 66-68 of April 28, 1966, relating to industrial designs. It is to be noted that the Algerian law, like most laws in the French language, distinguishes between "designs" (dessins) and "models" (modèles) on the basis that designs are in two dimensions whereas "models" are in three dimensions. However, this distinction has no legal significance. The French words "dessins et modèles" are, as in the Paris Convention, translated in the Model Law by the single English word "design." The definition must be understood in a broad sense: everything which gives rise, in the appearance of a product, to an aesthetic impression can constitute an industrial design. Thus, the definition also comprises external effects resulting from the employment of certain processes, such as oxi TEXT AND COMMENTARY 17 dation, singeing, enameling, light effects, transparency, etc., or where textile materials are concerned, effects suggesting stone-graining, marbling, water-marking, mottling, etc. A concrete aspect must always be involved; a manufacturing method or an idea relating to fashion is not protected. The Third Model Law Committee discussed whether the definition ought to include a condition that only what can be judged solely by the eye may qualify as an industrial design. This condition is nevertheless already present in that the industrial design must give a special appearance to a product of industry or handicraft. The word "appearance" means that only the external aspect, capable of visual appreciation, can be protected. If, for example, a manufacturer of chocolate wishes to protect his products against imitation, the law on industrial designs covers only the external aspect of the chocolate (for example, chocolate in the shape of an animal), but not the contents or flavor. An important element of the definition resides in the function of an industrial design: it must be capable of serving as a pattern for the manufacture of a product of industry or handicraft. This condition takes account of the fact that the law of industrial designs must respond to the special needs of industry and handicraft. Only creations that can be used for these purposes are thus eligible for protection under this law. Subsection (2) excludes from protection elements in a design which, although within the definition of subsection (1), are indispensable to the obtaining of a technical result. Such elements are within the domain of patent law and are outside the protection under the law of industrial designs. In this context, the expression "technical result" is used in a broad sense and does not only cover objects which are patentable. A situation of this kind can arise more frequently in the case of a three-dimensional rather than a two-dimensional industrial design. It must, however, be noted that the exception in subsection (2) is only applicable in so far as there is an inseverable link between the form claimed and the elements bringing about the technical result sought. If the form is not necessary for obtaining the technical result, there can be co-existence of an industrial design and a patent. For example, a new form of shoe may have a specially reinforced heel. Here, the form of the whole shoe may be protected as an industrial design, and the method of reinforcement of the heel can be treated as irrelevant for this purpose, though it may be the subject of a patent. But if the special form of the shoe serves solely to reinforce the heel, 18 TEXT AND COMMENTARY it will not be covered by the law of industrial designs. The Third Model Law Committee considered whether the words "functional effect" should be used instead of "technical effect." This proposal was not adopted: the phrase "functional effect" is too broad, in that it can also include the aesthetic function, and, at the same time, too narrow in that it does not extend to technical effects falling outside the use of the object embodying the industrial design, but bearing upon its production-for example, where a certain form has been chosen solely for the purpose of facilitating manufacture. APPENDIX IV.-MATERIALS PROVIDED BY JAMES F. FITZPATRICK, Esq., ON BEHALF OF THE STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANIES I am forwarding for your review and consideration a statement from trade associations and companies which represent a majority of the companies writing automobile insurance in the United States. As you can see, they strongly urge that the Administration not endorse or support the design copyright provisions contained in H.R. 379, or comparable provisions, at this point. As set forth in detail, these new statutory rights could be used by auto manufacturers to snuff out vigorous, and highly beneficial, price competition in the sale of sheet metal repair parts which is affording an estimated savings of hundreds of millions of dollars a year. If you would desire any further information or material insurance representatives would be pleased to meet to January 23, 1987 Representing companies that write a majority of the automobile insurance in America, we are urgently concerned about reports that the Administration might include in its "competitiveness" legislation, or in separate legislative proposals, provisions comparable to those in H.R. 379. We emphatically recommend that the Administration not endorse the design copyright provisions of H.R. 379, or similar approaches, at this point. This highly controversial proposal could be used by automakers to eliminate the vigorous competition that has recently emerged in the manufacture and sale of automotive crash parts. This competition has resulted in competitive savings of hundreds of millons of dollars annually. The Administration should not take any positive action on these proposals until there is a thorough opportunity to evaluate the benefits of this competition and consider the severe impact of this proposal on the domestic property and casualty insurance industry and consumers. On the other hand, the more generic provisions of H.R. 379 directed to changes in procedure under Section 337 of the Tariff Act do not raise the same type of problems for the insurance industry, and may be much more appropriately included in proposed competitiveness legislation. Views of the insurance industry can be properly received in detailed Congressional hearings on this proposal. Alliance of American Insurers Government Employees Insurance Co. The Kemper Group National Association of Independent Insurers Nationwide Mutual Insurance Company State Farm Insurance Companies |