The Swiss Federal Institute of Intellectual Property (IPI) regularly hosts an ‘IP@6’ evening in Bern (see below). In this lecture series, experts present the latest developments, unexpected correlations and provide insights into practice. At the most recent event on 4 September, guest presenter Dr. Robert M. Stutz shed light on design protection.
Reimagining design – “It’s not just about beautiful shapes”
When we hear the word ‘design’, we inevitably think of a uniquely-shaped table, the dynamic lines of a chair or a distinctive handbag. However, according to design expert and attorney Dr. Robert M. Stutz, shapes and objects are just one element of the history of design.
The IPI blog: You are in favour of separating the term design from objects and thinking more laterally. What do you mean by this?
Robert Stutz: Nowadays, designers are no longer primarily product designers, but in a much broader sense, creators of value and culture. Design is a process of development and creation – not an end product. It’s about more than just beautiful shapes.
What do you mean?
Today, services also come under design. I am also talking about creative methods for developing solutions. Design is a process of development and creation which has effects on both products and services.
Could you give some examples?
Let’s take communication design. A railway company wants to inform its customers in the train station quickly and effectively. The focus is therefore not on an object but, when implementing a corresponding communication strategy, on the development of a new graphic or a new signal board which would, for example, help customers get to their destination more quickly. Another example is ‘design thinking’, which is a means of finding a creative solution to a problem. You start by observing and understanding the current situation.
Then you develop the idea with the help of some brainstorming and visualisation; prototypes, which are repeatedly tested and improved, underpin the entire process. The result is therefore not an object, but a concept arising from a creative process. Ultimately, design includes anything that adds value.
Is it possible to protect this type of design? Doesn't current legislation only cover objects?
In Switzerland, and also in the EU, the Designs Act only protects the exterior form of products, not methods or abstract ideas or concepts. As such, there is no protection for ‘design thinking’. According to copyright law and design law, anyone can use an idea to find creative solutions. Patent protection only becomes an option if the idea concerns the use of natural materials or natural forces.
Apart from this broader meaning of ‘design’, what trends are emerging in design protection?
Definitely search options on the internet. Today, service providers offer comprehensive design searches at a low cost. By simply uploading a photo, you can quickly find out if the creation in question is novel. The software still has trouble with two-dimensional patterns and 3D objects whose function is not easy to identify. However, the tools are constantly improving.
This is only the beginning of the evolution, as artificial intelligence will play an increasingly significant role. It is therefore important that there are already solutions that enable worldwide searches online. At some point, we will no longer be able to get around searching for existing shapes in order to avoid being accused of copying when launching a new product.
What personal connection do you have with design?
I have always been passionate about design and even considered making it my career. When the time came to make the choice 30 years ago, I decided that I would become an attorney, but that I would specialise in intellectual property. As President of the Berner Designstiftung (Bernese Design Foundation), I am also involved in promoting and disseminating design knowledge. Within international organisations, I work in design protection. So, my career has always been connected to design.
As an attorney, what have been your experiences with protecting designs?
It still often happens that a design is not registered. There is often a lack of understanding of the fact that a creation must first be protected to be able to successfully commercialise it at all. In the fashion industry, I can understand this attitude to a certain degree because the products have a very short life span. In the EU, the problem has been solved by guaranteeing protection of an unregistered design from slavish imitation for three years following its publication. This approach is worth considering in Switzerland.
In addition, the rumour persists that a minimal variation in the shape is sufficient to circumvent the protection. That is false.
IP@6 is a series of free lectures organised by the Swiss Federal Institute of Intellectual Property (IPI). The lectures focus on current issues and problems in the field of intellectual property.
Attendance is free of charge. The events take place in Bern and are approximately 90 minutes long. After the lecture, attendees can do some networking in an informal setting over light refreshments.
For further information, see IP@6 (available in German, French or Italian).