The Expansion of the Eye Appeal Rule - Essay Example

Does "eye appeal" remain an underlying factor in determining registration of designs under the 2001 Registered Design Regulation The 1949 Act Pre-2001 a design had to meet a series of conditions that were set by section 1 of the 1949 Act in order to be registered. Registration was (and still is) an important step in protecting a company/individual's investment in a research and development as it prevented third parties from appropriating the look of an original design. Under Section 1 of the 1949 Act the following could be registered and thus protected: 1) Any feature of shape, configuration, pattern or ornament; 2) Applied to an article by any industrial process; 3) which has appeal to and is judged by the eye. Thus a design had to meet the specifications of 1 and 2 as well the provisions of the "eye appeal" that will be explored in detail here. The exact definition of "eye appeal" has been litigated over the years in a number of cases, perhaps most importantly in Amp Inc. v. Utilux Limited [1972] RPC 103. In this case, the House of Lords considered the meaning of the phrase "appeal to and judged by the eye" in the context of an electrical terminal chip that was used inside a washing machine. The Lords held that this was a "functional design" (Amp, 1972) which did not "appeal to" nor was it "judged by the eye". The Lords proposed a number of general propositions that have become a part of established precedent: a) the eye to be considered is "the eye of the customer" and not the "eye of the judge", or of the expert within the particular design field. b) the article may still appeal to the eye even though it is not of aesthetic quality or a work of art. c) the intention of the designer is of value but it is not conclusive d) a solely functional feature does not possess features judged solely by the eye since the only issue of interest to purchase is whether the article will meet its intended function. This definition of eye appeal was relaxed in the Gardex Ltd. v. Sorata Ltd. [1986] RPC 623 in which the court held that the design on the underside of a shower tray was not registrable. This, and similar cases, led to the 1988 amendment of the Act that stated that a design could not be registered if the "appearance of the article is not material" (Act, 1988, 1(3)). Thus aesthetic considerations are not normally taken into account to a material extent by persons acquiring or using a product or if the design were applied to the product: that design cannot be registered. The amendment had the important effect of removing from registration protection many everyday household items that would otherwise have been covered on the basis that their design is not solely dictated by function. Essentially, the onus was thus moved to the designer to prove the aesthetic importance of the design over functionality. New Design Law: 98/71/EC The justification for the European community's institution of new design laws was basically quite simple and perhaps inarguable: 2) Whereas the differences in the legal protections of designs offered by the legislation of the Member States directly affect the establishment and functioning of the internal market as regards goods embodying designs; 3) whereas such differences can distort competition within the internal market. 4) Whereas it is therefore necessary for the smooth functioning of the smooth functioning of the internal market to approximate the design protection laws of the Member States. (Directive, 98) Thus the Directive was designed not to harmonize all design law perfectly but rather to prevent discrepancies between national provisions that would stifle trade between member states. One of the reasons for the inclusion of the Directive within the 1949 Act is that the latter was seen as inflexible and uncommercial, especially considering the need for eye appeal, which was always rather amorphous and contentious issue. The new requirement is that the design falls within the definition of "design", that the design is new and that design exhibits individual character. The new definition of design is more universal, and clearly meant for a definition that broadens beyond industrial use. Thus the Directive states that a design is "the appearance of the whole or a part of a product, resulting from the features of, in particular, the lines, contours, colours, shape, textures of material of the product or its ornamentation," (s.1,2) while a product is defined as "any industrial or handicraft item other than a computer program." (s.1.3) Two important difference are the fact that there is no longer a need of the design being "industrially applied" and also no need for "eye appeal". The fact that a design no longer needs to have industrial applications means that far more products are thus protected than in the original 1949 Act. Thus artistic designs may be protected under the new provisions. 'Eye appeal', always a subjective and thus perhaps confusing provision under which parties might not know what designs were protected and which not, is replaced by the idea of novelty. The test of novelty is subtly different from that of eye appeal: . . . no identical deign or no design whose features differ only in immaterial details has been made available to the public before the relevant date. (s.1b,2) Once again definitions become important as "immaterial details" is a somewhat amorphous concept that may mean different things to different people. Other law may be helpful in formulating a definition, as "immaterial details are features which no significant visual impact on the design." (Household, 1998) Immaterial details may thus be those that are so small or so generic that they are unlikely to have an effect upon the decision as to whether a product should be bought or not. This, of course, comes perhaps dangerously near to the subjectivity of the eye appeal. The "individual character" of the design is formulated by a consideration of the overall impression of the design as would be formed by an informed user. The Act now specifically states that "the overall impression it produces on the informed user differs from the overall impression on such a user by any design which has been made available to the public before the relevant date." (s.1b,3) It is particularly important to note that this specifically rejects the argument made by the Lords in Amp that the judge should be the "eye of the customer" rather than the "eye of the expert within the field". It is now firmly placed within the eye of the expert. One reason for this change is that design is now far more complex within a multitude of products than it was in 1949. The customer may not perceive the similarity, but this is irrelevant to the fact of whether the design has actually been stolen from another's ideas. In an age of increased specialization of knowledge, whether it be legal, design or otherwise, greater weight must be given to the expert's eye than the layman's. The latter is no longer qualified to make the assessment of the uniqueness (or otherwise) of the design. Another addition to the idea of eye appeal has been those complex products that have an individual character. A complex product "is comprised of at least two replaceable component parts permitting disassembly and reassembly of the product" (s.1,3), and parts of this product count towards deign protection if they remain visible during normal use of the product. Those designs which are not protected are those that fail to fall under the function of 'design', those that are dictated by technical function, those that are contrary to public policy or which are immoral in nature and certain emblems. The exact definition of these has yet to be tested, and problems may arise over the exact definition of "technical" and "immoral". Many electronic goods have design features that serve both a technical function but which are also part of the aesthetic appeal of the product; for example the features of a remote control. Second, immorality (or morality for that matter) is in the eye of the beholder. To conclude, the recent changes to design registration law were instituted in order to reflect the transformation that has occurred within many industries, both consumer and otherwise. The expansion of the eye appeal rule to include novelty and individual character, together with the deliberate inclusion (rather than deliberate exclusion) of the expert eye is sensible considering the great complexity and thus subtly of many designs. The consumer's eye should be important, but it is not the only eye which can be thus construed. __________________________________________________ Works Cited Act, 1988, 1(3) Amp Inc. v. Utilux Limited [1972] RPC 103 Directive 98/71/EC, October 1988 "The Legal Protection of Designs" Gardex Ltd. v. Sorata Ltd. [1986] RPC 623 Household Articles Limited's Registered design [1998] FSR 676 Read More