“Small but significant”
Designs spice up our goods and products. Just think of Nespresso machines, Swatch watches, Corbusier loungers and Toblerone packaging. We talked to Beat Schiesser, who has managed Design Protec-tion at the IPI for more than 35 years, about the most recent intellectual property right.
Beat Schiesser: Antoine Cahen from the Lausanne-based Les Ateliers du Nord springs to mind. He’s been in the business for decades, his work is great and he’s responsible for the typical design of Nespresso machines.
Probably. Maybe he would even like to be more well-known. But designers are very much in the background. They work on behalf of companies, and their names are very rarely visible at the point of sale. In fact, they are also practically invisible to the IPI. Because it’s generally the contracting companies that register designs with us. Consequently, we don’t know at the IPI how many freelance professional industrial designers are active in Switzerland, for example.
Above all, the consumer goods industry, as well as the packaging sector. Appearance and form always play a role in the marketing of cosmetics, cleaning products, household devices, watches and foodstuffs.
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We also have dealings with tradespeople, such as joiners and metalworkers. And finally, there are private individuals who produce designs in their free time.
You’re forgetting the designs that are registered with the World Intellectual Property Organization (WIPO) in Geneva. Every Friday between 10am and 2pm, we receive a dataset from WIPO. Each dataset contains between 100 and 150 registrations with over 1,000 designs, whose owners seek protection in Switzerland. We examine these designs materially and ensure, for example, that they don’t contain any offensive elements. Multinational companies, such as Swatch, register all their designs with WIPO.
I need to give you some background information on this first. Worldwide, car and consumer electronics manufacturers register a great deal of designs. In these two industries, disputes about protection can quickly result in claims for large sums of money. But as designs generally have a brief lifespan, producers tend to concentrate their legal protective measures on major markets. As a result, court cases rarely occur in little Switzerland. There is no long-standing legal practice in Swiss design law, in contrast to the situation in patent and trade mark law. That is what is meant when you hear people talking about the difficulties of enforcing design rights.
We see that most disputes about protection are resolved out of court, for example disputes about licensing agreements.
The European Union Intellectual Property Office (EUIPO) in Alicante, which is also responsible for design protection, published a study on the subject several years ago. Even I found the results astounding: a fifth of all consumer goods sold in the European Union (EU) enjoy design protection. We’re talking about products that generate revenues in the billions for their manufacturers year after year. I should point out, though, that designs are automatically protected against imitators in the EU for three years from the date of their market launch. This is not the case in Switzerland.
(He laughs) Can we patent ‘this’?
We generally start by explaining the basic principles. Firstly, you can’t protect ideas either in Switzerland or anywhere else in the world. Secondly, only inventions that solve a problem with technical means can be patented. A draft design does not meet this condition. That’s why design protection exists. In the past, we talked about two-dimensional samples and three-dimensional models. However, since the Federal Act on the Protection of Designs came into force in mid-2002, we have only referred to 'design', a small but significant niche product.
Our discussions often turn out to be very interesting. I remember one of my first conversations with Daniel and Markus Freitag. They explained their idea of making bags from used truck tarpaulin. Their initial disappointment at discovering that ideas can’t be protected didn’t last long. Because it emerged that the bags, which are now distributed worldwide with the label ‘Freitag’, had plenty of elements that could be protected: seams, edges and straps. Later, the brothers told me that they had considerable cause to be grateful for the IPI’s information.
Yes, I did indeed have Mr Giger on the line once. I didn’t realise at first that it was the Mr Giger. He was annoyed about imitations of a table he designed. I just listened. His view was that he was an artist and his creations were therefore protected by copyright. That is not generally the case, however. In practice, it depends on the judge’s discretion. When he understood that, an amazing conversation developed.
There are in fact some cases of overlap: a famous example is the lounger created by Charles-Édouard Jeanneret-Gris, known as Le Corbusier. The Federal Supreme Court confirmed that it’s subject to copyright and that it can’t be produced or distributed without authorisation from the heirs of Le Corbusier.
Proprietors of a design have the option of protecting their design as an indefinitely renewable shape trade mark. The hurdles are high, however. The proprietor must provide prima facie evidence, for example via a representative survey, that their design has become established in the market, i.e. that their design is seen by the public as an indication of its commercial origin. This is the case for the Panton Chair. If the application is successful, the item in question finds itself in a kind of paradise for iconic designs.
- What can you register as a design and what do you need to bear in mind when doing so? Find tips on design protection here.