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Partial Design System in Japan
Partial Design System in Japan [PDF file : 2.03MB]
Firstly I want to thank you all for coming. I would like to take this opportunity to explain to you a little about the partial design system in Japan.
The goal of the partial design system
Japan adopted a partial design system on January 1, 1999. This was employed to prevent a third-party from imitating an individual portion of a particular unique design. For example, the drawing displayed here is a front view of a camera. If a partial design were registered for the central portion of the camera indicated in the drawing on the left, a third-party product that was similar with respect to this central portion but differed in shape with respect to the other parts (the drawing on the right) would still be an infringement of the design right.
The definition of a partial design
According to practice of japanese design law, the follow three conditions are required of a partial design. The article must be one that is applicable to design law. The part of the article that is claimed must have a definite scope with respect to the article as a whole. Finally, the article in question must have at least one unique element in comparison to previous designs. Let me explain each of these requirements in more detail.
1. Unity of the article
The drawing on the upper-left of the screen correlates to a T-shirt, the shape of which is depicted in broken lines, and a design of rabbit appears on the front. This pattern would be accepted as a partial design with respect to the T-shirt. however, in the case of the drawing on the lower right, since the article itself is not specified, and indicated merely as a "Pattern to be Depicted on Woven Products", the pattern of the "Pug" would be rejected as only the pattern of the pug is clearly illustrated, and there is no clear association or unity with respect to the article or product.
2. Specifying the scope of the part
The drawing on the right of the screen is that of a concrete block used in construction. In the upper drawing, they are attempting to depict the portion to be registered as a partial design with only a solid-line, while all of the other lines are broken. With only this single solid line, the actual shape and scope of the portion subject to the partial design is not clearly depicted, and thus what portion or shape is being claimed as the design is unclear. In case such as this, the partial design claim would be rejected. In the lower drawing, the scope is clearly defined by a dotted and dashed line around the solid lines, and as such this portion would be acceptable as a partial design.
3. Creative element
With respect to the plastic bottle depicted here, in the drawing on the lower left, the area specified would be accepted to be a independent, creative element and the article would be permitted as a partial design registration. However, as shown in the drawing on the lower right, this article would not be accepted because the part depicted is not comprised of an area clearly indicated as a shape that can be determined to be a creative element.
Examples of permissible partial designs
Partial designs, in principle, are not acceptable when they are comprised of two or more separate parts. However, even when they are separate portions, as shown in the two drawings on the upper right of the screen, when the unity of the portions is visible with respect to shape ? In other words, for example, the opposing corners of the clock case or the pattern on the front of the T-shirt that clearly comprises a flower ? Such portions would be accepted for partial design registration. In addition, as shown in the two drawings on the lower right, in the event that the unity of function is visible - In other words the shape of the handles on a pair of scissors or the shape of individual control buttons on a cell phone ? Such portions would be accepted for partial design registration.
Examples of partial design drawings
In partial-design drawings, the portion claimed for partial design registration is depicted in solid lines, while the elements not claimed are depicted in broken lines. In the example illustrated here on screen ? A cup with a base ? The portion that is being claimed is the base of the cup. As with standard design registration applications, 6 views are required, and in this case a sectional-view would also be necessary to clearly illustrate the shape of the portion being claimed.
The number of partial design applications
When we look at the number of partial design applications, while the partial design system was implements in 1999, in the year 2000 the number partial design applications represented 15% of design applications as a whole. However, according to the statistics for 2004, partial design applications have climbed to 22.7%.
Decisions of dissimilarity
The drawing in the upper right portion of the screen is an applied for design, and the drawing below is a prior design cited by the examiner. The examiner considered these designs to be similar as the both involve a container with an indentation in the side portion. In the trial against the rejection, since the rejected design involved a large indentation at the upper area (shoulder to body portions) that contrasted with the indentations of the cited design in that they were small and located on the sides, trial examiners determined that the two designs were dissimilar.
Decisions of infringement
I would like to explain now about an example from an infringement lawsuit in which the infringing product was judged as being similar to a registered partial design. The drawing at the top of the screen is a drawing of the registered design, while the drawing below is an illustration of the infringing product. The registered design is titled a "Makeup Puff", and the brush portion and the brush-base portion were claimed as partial design rights while the handle portion was not. On the other hand, the infringing product was called a "Germanium Silicon Brush", which was basically two brush portions joined back-to-back by a thin pillar, with each of the brushes facing opposite directions. As both party's articles are the same in function and use, a decision of similarity was issued. Furthermore, the decision was also based on the fact that the shape of the portion claimed in the partial design right and the shape of one of the brushes of the infringing product are similar.
Please consider filing partial designs !
Based on these points, it is recommendable to carefully consider whether or not a design can be applied for as a partial design. Thank you for your patience and attention.
