Thursday, 27 October 2011

Art, Style, Design: a thought-leader

Professor Mario Franzosi is a founder-member of the Journal of Intellectual Property Law & Practice Editorial Board and a well-known thought-leader in both international and European intellectual property circles. A leading advocate of the need for fresh and functionally useful thinking in the field of design protection, he is the author of "Design protection Italian style", Journal of Intellectual Property Law & Practice (2006) 1 (9): 599-602..

The following piece marks Mario's appointment as the International Association for the Protection of Intellectual Property (AIPPI) rapporteur for Design.  JIPLP hopes that, apart from serving as a clarion call for the reform of design protection law, it will generate the submission of articles to the journal on that subject.

Art, style, design
1.     The AIPPI logo
The occasion for this article stems from my appointment as rapporteur for AIPPI for the Question: Design. At first, I considered the AIPPI logo, to see whether it is visual (or graphic) design (right). To me, it is clear what the logo expresses. To the left you see a school of fish, which confidently enter a trap in the centre. However, the trap is broken, so that fish exit to the right. There is nothing wrong, however, since the fish are inedible. The acronym AIPPI (which is in French) clearly summarizes the idea: Association Internationale de Pecheurs de Poissons Inutiles, in English: International Association of Inedible Fish.
I do not believe this logo is a work of design. In addition, it is somehow deceptive: a trap for fish. AIPPI should or must change it. 
2.     Art, style, design
So we have to consider the protection of design in the world. I have to say at the outset that the various laws of the various countries are very, very different. What is design in country A is not design in B; what is protectable in one country is not in another. But it is worse than that. It is not infrequent that, in the same country, in case of litigation the first instance court reaches conclusions utterly different from the higher court. Of course, this event is not infrequent in other areas, but what is peculiar here is the confidence in which the lower court says something (like: this design is extraordinary and clearly deserves protection) and the higher court says, with the same or greater confidence, just the opposite (this is a ridiculous and stupid design). There are no grey areas: what is absolutely white for somebody is absolutely black for others. How is it possible? The judges adopt a lay concept of design, and apparently there are first grade and second grade laymen.
I believe the starting point should be to try to understand what is design in the real world, before the law comes into consideration. To this aim, a distinction should be made between Art, Style and Design.  
2.1.Art results from the work of artists, those people who, with constant and enduring passion, communicate in understandable form their feelings and thoughts -- feelings and thoughts that are universal: those of the human race. 
Art expresses those permanent ideas like Beauty, Love, Courage, Misery, Heroism, Passion, Faith, which are everlasting principles and sentiments. The message is not immediately evident; especially for modern art, it has to be detected or interpreted; when detected, it makes an everlasting impression. 
Works of Art are in Museums, and also in the lobbies of the most prestigious law firms. Some months ago I was in the office of a well-known, high-profile IP lawyer and I saw in the lobby a most catching picture. In this picture I clearly recognized that lawyer (looking, perhaps, a little younger than his actual years), working tirelessly for a case. The picture expressed clearly the intelligence, dedication, tension and ability of the professional. It seemed that this IP star was considering only the interest of his client, and nothing leaked from the external world. I expressed my admiration to the secretary. And she said (I told you that the meaning of the work of art is not immediately evident !): “Yes, Sir, true. However, it is a fact that the painting depicts a lobster, cooked with onions and potatoes”. I will not tell whether it was lobster or potato or onion that brought me to the identification with our famous friend. 
2.2. Style is typical of stylists, those people who express their style, their personality  in their creations.  A work of style is recognizable and easily attributed to the stylist. It is the signature of the creator, like a real signature made with a pen (stylus, in Latin). It must show the personality of the creator; if not, it is a creation with no style. And the style has to be consistent: if Armani changes style and designs in the style of Dolce & Gabbana, the public will say that he has lost style, and deserves no consideration and appreciation. The same if Dolce & Gabbana designs in the Armani’s style: nobody would accept it. An exchange of image is not allowed, since it would be a loss or style, no matter whether the new style is good or bad. 
2.3. Design is quite a different animal. Designers design common objects, those kind of items that you use every day, in a manner that it is (or should be) appropriate for you and the object. They design common coffee-pots, or typing machines or refrigerators, which make good coffee, keep your food fresh, type letters easily. The personality of designers does not count; it is the utility and elegance of the object that matters. When in a shop window you see a coffee-pot that is a work of design, you look at it with interest, enter the shop and buy it (even if it costs a little more than expected, but not so terribly more), because you have a feeling that it is nice and makes a good coffee. You put the old coffee-pot aside, and think of using the old only if the new breaks out. But the new does not break, if it is good design, so that the old remains disconsolate on the shelf, until it goes, even more disconsolate, in the basement. 
A work of design is a work of a designer, working with other functions in the company. If the company could buy aluminum at a bargain, the coffeepot is made of aluminum; if not, is made of iron. If the company wants to make use of a number of filters that lay in the warehouse and nobody finds a proper use, the coffeepot employs said filters. The product is made with what is easily available, provided is appropriate (fit and match, if I may use the European terminology). The product is proper, but not fanciful; the public does not know, and does not recognize, the designer. The public buys coffeepots, and not names. 
Of course there are contact, or conflicts, between Art, Style and Design. For instance, if you enter a museum of fine art and see a beautiful chair, you may not know if it is a work of Art or Design. But there are ways to find out. For instance, if you sit on the chair and you feel comfortable, it is a work of Design. If you sit and the alarm sounds, the guardian comes with a broom and scolds you, it is a work of Art. The amount of scolding is the amount of creativity. 
3.     Do we have good laws for design? 
Now, what is the legal protection given to design by the various laws? The answer is easy, albeit disappointing. 
It is not at all clear what the laws protect, under the purported label of design. It is clear instead, at least to me, that the laws contain highly generic formulations which at best signify nothing, and at worse are a source of confusion. See for instance the definition of design in the European (or Community) Design Regulation. It says that 
"design" means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation.” 
This is not an exceptionally brilliant definition. And the law specifies that 
A design shall be protected by a Community design to the extent that it is new and has individual character”. 
The element of novelty is relatively clear (or at least I do not want to confuse the innocent reader at this point). The most important and problematic element is the individual character: 
A design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public…” 
before the date of the design or the priority. 
If you apply the law for what it says, you end up protecting a coffee-pot in the shape of a shoe-brush, or a shoe-brush in the shape of a coffee-pot.  You would protect a mouse trap in the shape of the statue of the finance minister, and the statue of the finance minister in the shape of mouse trap.[1] This is somehow an exaggeration, but not so much. The register of the European Design Office (OHIM) is full of useless and sometimes ridiculous designs. Worse, it is full of unnecessary monopolies which add nothing to human knowledge, art, progress.
This situation is not at all unique for Europe. I have a feeling (better, I have to say) that the situation is no better in other countries. But I feel at ease to criticize my system, and hesitate to criticize the systems of others who have not requested my opinion, and that could not care less. 
Is this the law (are these the laws) we have? Yes. 
Is this the law we need? No. 
There are two categories of persons who would be happy with this law. One is the class of patent attorneys who file design applications. The other is the class of litigators who profit from it. Personally, I feel discomfort, even if I belong to one class or both. Double discomfort, therefore. 
I do not think it should be the spirit and mission of the law to create useless  monopolies. And every monopoly whose boundaries are uncertain is either useless or dangerous. And see what kind of monopoly! 
While for a patent for inventions an inventive level is necessary, a small difference is sufficient for designs. It is enough that the product is not common-or-garden. And if this condition is fulfilled, the law grants a monopoly for 10 or 20 or 25 years. 
One could say that this is not the first time that the laws have provided monopolies for realizations which are not creations, and one could add that there is nothing wrong with it. For instance, a trade mark does not require ingenuity in order to be protected. And a copyright exists also on creations of low level. All these are monopolies, and this is not a problem. But the argument does not fly for design. Design is a different animal. It consists of the form of an object, and the availability of forms is not unlimited. In some cases, the forms are few. In all cases (repeat, ALL), the forms are limited, and normally much less (I would say, incommensurably less) that the operators of a specific product. The available shapes for coffee-pots are much less than the producers. And monopolies for common shapes, or immaterial variations, are bad. They are an obvious and unnecessary obstacle to free activity, an obstacle that can only be removed with pain and effort. 
Let me mention a personal experience. Some time ago I received a client who makes a common product, which I will call a mouse-trap. It was a mouse-trap not too different from a conventional mouse trap, those that you know and that all mice find so attractive.[2] The client had received a warning letter from an entity which had obtained a Community design registration, and asked for a cease-and-desist undertaking, or a not so terrible compensation for allowing my client to continue commercialization. To me, even if this is not (I have to confess) my primary qualification, the mouse-trap looked almost conventional. But I decided to make a search, and found that Entity Inc had obtained about 350 similar registration for mouse-traps. The result was that all the field was covered: all mouse-traps in Europe infringe Entity's registrationsy. Of course, my client could litigate and win the case, but the cost of litigation would have been much higher that the cost of settlement. So the client decided to pay. You can multiply this case by 350 (in reality, much more) and see the purpose and social function of the Community Design System, or at least how it could be used. Beware, you innocent reader, that intend to sell mouse-traps, even if common-or-garden or immaterial variations !

[1] Incidentally, a shape with is somehow descriptive of the situation, when you consider that you have to pay taxes.
[2] Incidentally, the validity of an European design has to be assessed with the eyes of the informed user. The  informed user for a mouse-trap is (according to the definition of the prevailing jurisprudence) the average mouse, well informed and attentive.

1 comment:

  1. Martin Schlotelburg31 October 2011 15:19

    When I opened the link to this article I thought I must have hit the wrong keys and was brought by the Wayback Machine to the old times when design protection was still in the hands of the 'experts' granting it only when it was news to them. It is THE achievement of the European design law to have got rid of these 'persons skilled in the art' and hand the key to design rights over to the (informed) users. Since then design protection has become a truly userfriendly instrument. For me, these repetitive complains that design registers are full of useless or ridiculous items have a rancid smell. Useless things can be fun. Why should it be always art and style? Martin Schlotelburg