Individual character assessment in design law

Individual Character Assessment in Design Law The aim of this master’s thesis is to reveal the challenges of assessing design’s individual character in practice. The requirement of individual character in today’s design law is understood as the requirement for a design to be distinguishable at a certain level so that from an informed user’s perspective the overall impression that the design creates would be different from the prior art. The first part of this work summarizes on disclosing the conceptual notions of design law that are relevant to this topic as well as the existing legal regulation of design law. The main focus of this part is to reveal the basic aspects of the two main requirements for design’s legal protection – novelty and the individual character. The second part of this work is devoted to answering the main question of this study – how are the individual character of a design assessed in practice. Whereas the practice of the national courts of the Republic of Lithuania on this topic is poor, assessment of the design’s individual character is analyzed according to the case law of the judicial authorities of the European Union. Some aspects are as well discussed according to the case law of the United Kingdom. The problematic aspects of the assessment of design’s individual character are revealed from the perspective of the overall impression possessed on the informed user, issues that can arise while evaluating the freedom of the designer and also according to nature of the product. Attention is as well drawn on a new and not yet studied aspect in the doctrine – the problem of protecting a new generation of a design, with respect to two relevant judgements of the General Court of the European Union that gave different answers to this question. The last part of this study is for considering the relation between copyright law and design law. The basic differences of each of these intellectual property rights are discussed, as well as the principle of double protection opportunity. Also the requirement of originality for a work of art in the copyright law is compared with the requirement of the design’s individual character. In addition, the newest approach of the European Court of Justice, considering the level of originality for a design to qualify for copyright protection, is presented and evaluated