Imprint Translation from German into English: Rose Tizane Merrill, Berlin Art work, cover, and typography: Erik Spiekermann & Thomas Walsch, Edenspiskermann, Berlin illustrations: Liv Andrea Mosdal, Gvarv, Norway Layout: Sven Schrape, Berlin Proof reading: Karin Huck, Basel Project management: Robert Steiger (Birkhauser) ACIP catalogue record for this book is available from the Library of Congress, Washington 0.C.,USA, Bibliographic information published by the German National Library ‘The German National Library lists this publication in the Deutsche Nationalbibliografie: detailed bibliographic date are available on the Internet at http://dnb.d-nb.de. This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, re-use of illustrations, recitation, broadcasting, reproduction on microfilms or in other ways, and storage in databases. For any kind of use, permission of the copyright owner must be obtained. This book is also available in a German language edition (ISBN 978-3-0346-7643-7) © 2013 Birkhauser Verlag GmbH, Basel PO, Box, 4009 Basel, Switzerland Part of De Gruyter Printed on acid-free paper produced from chlorine-free pulp. TOF = Paper: Munken Print White, 100 g/m? Typeface: Arnhem, Akkurat Printed in Germany ISBN 978-3-0846-0101-6 987654321 www.birkhauser.comBECOMEA SUCCESSFUL DESIGNER PROTECT AND MANAGE YOUR DESIGN RIGHTS INTERNATIONALLY BIRKHAUSER BaselTable of Contents Joachim Kobuss 3 Introduction Alexander Bretz ag Part! Exploiting rights 22.22 lt 1 The legal framework for design in a globalized economy 23 1.1 Creativity, law, and money 1.2 Intellectual property rights relevant to designers 1.3 International legal relations 2 Whysuccessful designers don’t need intellectual property rights 3 2.4 Shared space: A project 2.2 Places without protection 2.3 Howto design without intellectual property rights 2.4 Learning from those without rights 2.5 Intellectual property rights vs. competitive environment 3. Principles for survival —__3; 3.1 Margin of assessment 3.2. What ifyour designs are copied? 3.3 Whatifyou're accused of copying? 3-4 Sowhat does it cost? 3.5 Arbitration and mediation 3.6 Legal expenses, insurance, and financing of legal proceedings Checklist for cease and desist letters 494a 42 43 44 45 5. 5.2 53 54 55 6.2 63 6.4 6.5 6.6 6.7 6.8 Part il TA 72 73 74 75 How the law applies to the different design fields st ‘The design disciplines: distinct, yet overlapping Communication design Industrial and product design Interior design Fashion and textile design Negotiating contracts 57 Your attitude, predisposition, and skills Negotiation techniques in practice Negotiating contracts: some real life examples ‘Typical negotiation situations and how you should handle them Your positive potential for aggression The value of intellectual property rights —_77 When is the value of intellectual property rights assessed? Intellectual property rights on the balance sheet Using licensing contracts as a basis for value assessment Assessing the value of intellectual property rights in partnership agreements ‘Trademark protection through a demerger Licensing agreements and insolvency ‘Trademark licenses and abstract licenses Using intellectual property rights and licenses as collateral Creating rights 86 Design and product-affiliated rights - copyright and design rights 89 What you need to know about designs and products Copyright Design patent Registered and unregistered design rights (EU only) Design and product-affiliated rights worldwide Checklist for design and product-affiliated rights 1158.4 8.2 83 9-1 9.2 9.3 94 95; 10 10.1 10.2 10.3 Part ill aa 41a 41.2 11.3 11.4 12 24 12.2 12.3 12.4 12.5 12.6 Brand-affiliated rights - protecting trademarks and trade names 15 ‘Trade names: so what's ina name? The trademark Brand-affiliated rights worldwide Checklist for brand-affiliated rights 129 Activity-related rights - provisions in competition law 133 ‘Trade secrets: protecting yourself when pitching and presenting Palming off: the trademark’s tough little sister Cybersquatting: the rules of the game in conflicts over domain names Misuse of patent and copyright as an issue of antitrust laws Laws against unfair competition worldwide ‘Technical rights for designers - patents and utility models 143 Patents Utility model Patents worldwide Wording contracts 154 The search for the ideal contract 137 ‘The contract as concept Law and Economics Sample contracts Customization of the legal consequences Checklist for presentations 175 Defining your services in contracts —______a7 ‘The range of services Development of the design Granting of usage rights Client consultation Mediation activities Reimbursement of expenses43 13.4 13.2 13.3 13.4 135 13.6 13-7 44 14a 14.2 14.3 16.3, 7 a7. 47.2 17.3 47-4 175 17.6 47-7 17.8 17.9 17-10 a7at 47.42 17.13 17.44 17.45 Calculating your fees 187 ‘The range of fee-based services ‘The design fee ‘The usage fee ‘The consultation fee Your commission for mediation services Reimbursement of expenses ‘The special case pitch fee ‘Terms and conditions at your service 199 Whatare “Terms and conditions”? Terms and conditions for contracts of sale The design contract Liability and claims 207 Avoiding liability - an example Contractual obligations Liability for design ‘Typical liability risks for designers International business transactions 215 ‘The basics Defining the international jurisdiction and applicable law in your contract Is arbitration the solution? Anatomy ofa design contract nig Purpose License Term Compensation Record inspection and audit Warranties, acknowledgements and obligations Samples Copyright Termination Post-Termination rights Infringements Indemnity Notices Jurisdictions and disputes Agreement binding on successors17.16 Assignability 417.17 Waiver 17.18 Severability 17.19 Integration 18 18.1 18.2 18.3 18.4 ‘The future of intellectual property rights An internationally harmonized legal system Auniform IP right for all forms of intellectual property Protecting solely against commercial usage Employment of modern information technologies Interviews Introduction Interviewer Anja Engelke Alexandra Fischer-Roehler, Johanna Kihl Karsten Henze Fons Hickmann Arik Levy Eckart Maise Justus Oehler Sabine Zentek Appendix Acknowledgments Authors’ biographies International Survey Argentina Australia Brazil Canada hima Denmark EU France EU Germany EU Great Britain EU India Israel Italy EU Japan Kenya 235 243 245 249 251 253 255 257 259 261 267 269 a7 272 274 ages 278 280 te 284 286 288 290 292 294 296 298a2 Korea Latvia EU Russia South Africa Spain EU Sweden EU Switzerland Turkey USA Glossary of Legal Terms Addresses Literature Index 300 302 304 306 308 310 312 34 316 319 325 329 333Preface My writing partner Alexander Bretz and I have spent many years Joachim Kobuss consulting and coaching in the design industry. Together, we run an institute which aids companies and political institutions in finding, funding, and collaborating with designers - with the aim of safe- guarding the design industry for the future, Nothing seemed more natural than to compile our experiences in dealing with the protec- tion of design services into a book, in order to reach you - the design: ers ~ more effectively. The first step in this direction came with the German edition of Become A Successful Designer - Protect and Manage Your Design Rights Internationally. This was published in Germany, Austria, and Swit- zerland (as the second book ina series) in 2009. It quickly became clear to us that we also wanted to release an English-language edi- tion. You hold the result of this dec However, this ion in your hands. s no mere translation from German to English, rather a complete reworking and rethinking, taking into account the prevailing circumstances for designers in the English-speaking world. To our great good fortune, we were able to win Paris-based American national, Arian Hassani, as coauthor. Having worked for many years at UNESCO, she is recognized as an expert on design issues at the international level. Canadian-born copywriter and translator Rose Tizane Merrill was a further asset, thanks to her well- honed skills in communicating complex ideas in clear language. Inall, it’s been a congenial collaboration which has brought sev- eral significant departures from the original German edition with it. To the legal and economic expertise essential to the German edition, were added further insights on the international political situation. In his introduction on the following pages, Alexander Bretz explains how designers can most effectively put this book to use. Upon finishing the German edition, we came to the conclusion that above and beyond the descriptions and recommendations on exploiting, creating, and wording contracts, we had to make clear our position on the future of design rights internationally. This ean be found in Chapter 18 of this book. It’s a recommended course of a34 action for policy, administration, and all players in the design indus- try. We're delighted to have had the opportunity to contribute to the current discussion on copyright law in this way. To this end, this book should be viewed as our offering to the dis- cussion, wherein we express our position as it has been formed and informed by our experience. Suggestions and criticism are always welcome. Joachim Kobuss, Berlin, July 2012Introduction Why it’s necessary to transform two red pedestrian stoplight Alexander Bretz men into two green ones, what this has to do with design and how it can be accomplished? At some road intersections in Germany you'll find pedestrian lights that were actually designed for automobile traffic, with three lights arranged vertically. However, as pedestrians only really need two lights, one of the lights is doubled. I've always wondered why on these lights two red lights display- ing a stiff, stern figure are used at the top, while there's only one little green man running along at the bottom. It seems much more intui- tive to me to have two green walk lights ~ and preferably at the top. Isuspect that if such traffic lights existed in the USA, they'd do it that way around. ‘There's no need to dwell any further here on traffic lights and their relationship to German anxieties. However, metaphorically speaking, it's precisely this shift from red lights to green ones that this book aims to achieve. Simply put: the big red light that so many designers see whenever the subject of law or lawyers comes up, should be switched to green. This book takes a different approach to other publications on the laws relevant to creatives and designers. With its help, you should begin to understand law as a crucial aspect of your profes- sion asa designer ~ and maybe even begin to like it a teeny bit. Infor- mation has been brought together here from extremely diverse areas. Naturally, there's information on design rights and licensing con- tracts, as well as advice on how to negotiate such agreements. But there are also discussions of why the current rules exist and if any- one really needs them. Andall this, taking into account the situation worldwide: in Europe, the USA, and in a total of 23 countries around the world, significant to design: Argentina, Australia, Brazil, Canada, China, Denmark, France, Germany, Great Britain, India, Israel, Italy, Japan, Kenya, Korea, Latvia, Russia, Sweden, Switzerland, Spa South Africa, Turkey, and the USA, of course. a516 It’sa book that challenges intelligent designers who understand that design illuminates the path to the future when it's created by designers who see themselves as entrepreneurs ~ entrepreneurs who have perhaps the single most important quality to offer the world for the future: intelligent design. To contribute on this scale, you need to be legally fit - and for that reason you'll also have to leave behind those lawyers - the majority - who are still all tangled up in their national legal systems. These guys are sure to find a lot to disapprove of in this book. But that doesn’t matter, because this book is for you. We recom- mend you work your way through it like a textbook, with highlighters and pencil in hand. We even offeryou three ways to read this book to soften the experience: the nightmare, the challenge or the brown- noser trip. The nightmare trip works on the assumption that you really have absolutely no desire to delve into this subject, but have bought the book anyway, because it was some sort of penance inflicted upon you or because you felt obligated for whatever reason or because you're one of those people who believes that if you put a book under your pillow its contents will be magically funnelled into your brain. In other words, you're a hopeless case and you just want to read the bare essentials. It’s doubtful that this is something to be encouraged, but your fear of the issue obliges us to provide a way through the book for you that at least helps you learn the bare necessities. You should read chapters 1, 2, 5, 7, and 11. Make no mistake - itwon't be easy, because these are chapters presenting fairly sophisticated content in a concentrated way. But you should really be punishe: some way if you're only going to read so little of the content. The challenge trip will also be tough, but you'll be rewarded with considerably more knowledge. It works like this: in addition to the nightmare trip, read chapters 8, 12, and 13 -in other words, the five chapters of the nightmare trip plus the three of the challenge trip, in sequence. Then stop and ask yourself whether you shouldn’tjust read the rest of the book ~ afterall, you're already about halfway through! And now for the readers we like the most: the ones who aren’t afraid of being called goody-two-shoes by the nightmare and chal- lenge gang. This journey consists of simply reading the book in full. ‘There are three possible ways: following the order of the chapters, following the nightmare-challenge-everything-else order or simply choosing your own adventure. And does not absolute freedom make for real adventure?If some stuffin this book seems a bit odd to you or others tell you the book isn’t totally kosher, just remember that as a designer you're different from a lot of people. And that's why you and your talents will be needed in the future - like all those others who Wolf Lotter dubs the disturbeds. 'eDisturbeds. Germany embarks on @ search forthe ereative economy, the key to the information society... in the process, it discovers a class that somehow doesr't fit the plan. In: brandeins Nr. §/2007 p53: Creatives are creative because they respond very openly to sen- sory stimuli of all kinds. In the average brain, a mechanism called latent inhibition ensures that external stimuli are more or less blocked, People with severe inhibitions are virtually imperturbable and reluctant to be distracted from their routines. The unknown, the new - it rolls over them Like a drop of water across a fresh coat of glossy paint. The mind of a creative person is wired quite differ- ently, their latent inhibition only very faintly developed, the mind open 360° degrees - ready for anything, round the clock. To simplify matters, we'll call the first test group from now on the “inhibiteds" and the second, that of the easily excitable creative people, the “disturbeds” Naturally, you'll ask yourself why there are no law texts or model contracts printed in such a great book. Tell me, have you ever actu- ally read this stuff? Surely, you only read the odd model contract if there's no way to avoid it. We'll come back to that later, inciden- tally: how damaging it can be when you rely on texts that have been worded by others. That's the reason there are no model contracts, and certainly no law texts in this book. Ifyou really want these, you can find enough of them elsewhere on the market. Which brings us to a final piece of very important advice: please take note that this book reflects the opinions of its authors and may not be applicable to all situations. Many situations may appear similar on the surface, but actually differ from one other in key legal respects. What's more, the laws and jurisdiction don'tjust differ from country to country, but also change over time. So it may be that information in this book has already become out of date at the time of publication. Although we've done everything possible to avoid mistakes, the authors and publishers can assume no responsibility for any readers’ acts or omissions based on the information or advice in this book. Our readers should be very careful in applying ay18 the information oradvice in this book and, as a precautionary measure, seek the support and counsel of appropriate experts. To sum it up: please use your brain at all times and be careful!CCooyrights matoriatExploiting rightsCCooyrights matoriatThe legal framework for design in a globalized economy The systematic development, use, and enforcement of intellectual prop- erty rights are still very much in their early stages. This not only affects large corporations but it also severely impacts creatives themselves as our experiences in advising and coaching designers and design service pro- viders have shown. This finding is especially disturbing given that all the livelihood of designers hinges on their capacity to effectively manage their intellectual property rights. This chapter is about how earning money as a designer works, and how it can be improved with relatively little effort. It is an in-depth investigation on a commodity no one can spare to lose: income. Alexander Bretz: Before I began studying law, I did an apprentice- ship in publishing. In our training, we had a course called Subsidiary Rights and Licenses, so naturally I began searching for the course that addressed primary rights, but I couldn’t find anything in the syl- labus. lasked our friendly and competent instructor what primary rights were, given that we were concerning ourselves with Subsidi- ary Rights and Licenses, Despite his usual easygoing demeanor, he answered curtly and somewhat indignantly, Copyright law, of course! Allofa sudden Ihad the impression that Iwas behind everyone else, and that Iwas lacking an essential piece of general knowledge that embarrassingly came to light with my misplaced question. Ofcourse, I didn’t have the guts to admit that I actually didn’t have a clue of what copyright law consisted. So I bought myself books on copyright law, which I couldn't understand at the time because they were legal textbooks that assumed substantial background knowledge, and I trembled with fear up until the final exam, terrified that someone would ask me about the primary law. I'm happy to say that no one did. In the meantime, I thankfully know a bit more what it’s about now. ‘This is why this book begins with a gentle approach to what kind of rights we're actually talking about. Primary rights are not really as 2314 Creativity, law, and money The cultural and creative industry Constitutional right 24 simple as my professor made them sound, so don't doubt your intel- ligence ifyou don’t understand right away. Intellectual property rights for designers can be like bitter medicine: the first encounter might make you cough a lot, but you might still depend on it for your health. You probably didn’t purchase this book out of a love for law, butyou may find that law is much easier and more interesting than you think ~ not to mention easier to swallow than bitter medicine! Whether you’re self-employed or an employee, as a designer you're part of the economic system. Even the most artistic or experimental approach comes down to the necessity of survival in the end. Indi- viduals who earn their money through the exploitation of design- oriented activities, at the end of the day are dependent on the money they earn through the value of their work. But what do you actually get paid for? Your advice? Your strategy? Ideas, sketches or proto- types? Effort? The time you need for this? In theory, it’s simple. Lawmakers provide you with copyright laws that allow you to define for a certain time period who can use your intellectual efforts for how much money and in what way. You can completely forbid the (re)production of your designs, allow it in individual cases at a cost or regulate it in some other way. One can also interpret itas a plot of land with specific boundaries that lawyers and policymakers put at your dispos time frame. You can choose to sell this plot, rent itas it is, or make it more lucrative through construction. ion fora limited Policymakers, lawyers and economists have gone out of their way to establish intellectual property rights not because it’s in the interest of designers, but because it’s in the interest of society at large. After all, the growth and development of the global knowledge economy, including the cultural and creative industries, is based on the maxi- mization of creative production in all forms. Creativity isan integral human attribute that is protected by the con- stitution of most free and democratic societies. Following this train of logic, intellectual property rights legislation merely carries out the tenets of the constitution. Constitution of the United States of America, Fifth Amendment nor shall be any person ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensationLawrence Lessig, the American lecturer in constitutional law and Open source Stanford University professor, takes a fundamental approach to this question. Lessig claims that copyright legislation is the prime enemy of creativity and recommends replacing it with a system that allows free usage after payment of a one-time fee (or ticket), which has given rise to the so-called Creative Commons movement. According to Lessig, the current copyright law system and other intellectual prop- erty laws have up to now only led to an enormous expansion of more derivative laws, which have been of no use to individual creators. Lawrence Lessigin an interview withthe Suddeutsche Zeitung, 22.12.2006 There has been an explosion in recent years of so-called laptop music, Songs and individual fragments of songs are mixed via dig- ital media and used to construct completely new songs. However, this is forbidden, according to the U.S. courts, when permission has not been obtained. And so now we have teenagers sitting in Harlem, making fantastic music which they don't dare release because it’s unbelievably expensive to clear the rights. Many of them ignore the legal situation, others give up, and not even the music teachers in the schools teach them how to deal with it, because, well, you shouldn't teach children illegal things. It’s just ridiculous. Analogous open-source approaches already exist in the area of Open Design design, for example in furniture design. The Web site of the Open Design Club (address in Appendix) offers designs with detailed con- struction manuals even for commercial production under the con- dition that the name of the designer is always mentioned on the product. Widely available sewing patterns from decades ago also serve as good examples of a widespread democratization of design. One of the most important questions you must address asa designer 1.2 is what intellectual property rights are currently available andwhich __ Intellectual property ones are relevant to you. Here is a preliminary overview. rights relevant to A glossary of legal terms can also be found in the Appendix. designers > Copyright - protective right of the individual's intellectual creation, thus, important for your designs. > Registered design right - protective rights over the (optical) presentation of products obtained by application to the administrative authority. 2526 USA Great Britain Japan > Unregistered design right - only possible in the EU, these are the protective rights over the (optical) presentation of products, granted automatically upon disclosure. > Industrial design patent - protective rights over the (optical) presentation of products, obtained by application to the admin- istrative authority. As explained below, here originality must be proven via rigorous scrutiny. > Trademark ~a distinctive sign or indicator used to establish that the products or services bearing the trademark originate from a unique source, as well as to distinguish these products or services from those of other entities. A trademark may, in most places, consist of a name, word, phrase, logo, symbol, design, image, or a combination of these elements. > Patent~a protective right over technological inventions. ‘This will only be relevant to you in rare cases. In continental Europe, these rights are more or less engineered in the same way (and relatively widely differentiated). A possibility to simply register a design does not exist in the United States, The design patent, which is statutorily regulated there, doesn’t play avery big role in practice, because the Patent Office reviews it in a longer (and quite expensive) procedure which may also cause infringement proceedings by competitors. Due to the review- ing process so far more than 7o percent of design patent applications have been rejected in contested infringement proceedings. ‘The law in Great Britain is still very different: while it’s true that even before the EU's uniform regulations there were registered designs (and nonregistered designs), like in the U.S. there is still the basic concept of common law (as opposed to the civil law in central Euro- pean states). The difference between the two systems is a bit like the difference between building a house in the traditional way with walls bearing the load and the modern way to build a concrete skel- eton first and then adding walls asa skin. But don’t worry too much: in both cases eventually you have a house. Japan bases its civil law system on German law. Because Japan has booming design and technology industries, ithas been forced to develop a highly sophisticated intellectual property rights system. Designs are protected from identical copying for three years; however, this has become progressively more difficult to prove. Applicationsfor registered design rights are, as in the U.S., formally reviewed for form and content, causing various problems in practice. commercial law China Despite all rumors to the contrary, China now ha with intellectual property rights that are largely in line with inter- national standards. Although admittedly for the time being only on paper. This highlights China’s classic problem with intellectual prop- erty rights enforcement rather than legislation. In order for an injured person to seek justice, they have to rely on the administrative bodies which tend to take action only in the bigger cities. However, plagia- rists and intellectual property violators are frequently found outside of the the big cities, which easily slip through the eracks. The problem in China is therefore not the lack of rights, but their reinforcement. But of course in the context of a globalized economy it doesn’t 13 just come down to the various national laws of the different coun- International tries, Italso depends on the legal relations and the handling of legal relations laws between countries. Without going into too much detail at this point, there are essentially two different models for international legal relations in the realm of intellectual property rights, namely bi-and multilateral contracts in which the involved countries agree on certain (minimum) standards. There are also contracts between countries where an independent organization is created to take on specific functions for all the member states. ‘The model of creating an independent organization by several coun- European Union (EU) tries is best exemplified by the EU, which is already on its way to becoming full-fledged subject of international law even though itis not one unified nation. Since its founding, most of the legal matters pertaining to intellectual property rights for designers have not only been established but also harmonized. The most important agency for designers in the EU is located in Alicante, Spain, and itis called Office for Harmonization in the Internal Market (abbreviated OHIM, or in Spanish: OAMI). This agency is only responsible for EU-wide registration of design rights and trade names, not for EU-wide pat- ents. In fact, there exists no EU-wide patent office - as of yet (despite long-lasting discussions). There is a wide range of international organizations that deal with Worldwide intellectual property rights, including the World Intellectual Prop-_ organizations erty Organization (WIPO or, in French, OMPI), and the World Trade Organization (WTO), who in certain cases can have a considerableThe principle of equal treatment Progress in legal systems Method: Helping you 28 to help yourself influence on the international validity of a trademark and associated legal matters. Contracts that have been ratified by two or more countries also play alarge role. Later we'll di Here we'll just handle the principle which is mentioned in almostall of these contracts, namely the principle of equal treatment with nationals. This means that the intellectual property rights of a citizen in one contracting nation will be protected in the same manner as citizens in the other contracting nation. This sounds good, but it really only works when the participating countries have an essentially similar standard of intellectual property rights. Otherwise - and even in the case of totally different systems — such an agreement is to the advantage of the country with the lower standard of intellectual property rights. cuss this in detail Regions with relatively complex and differentiated legal systems are in general somewhat ata disadvantage to those with a more simply legal structure and lower protection standards. It is not so much alower standard of protection but the fact that simpler rules add to the usability. However, over time these competitive disadvan- tages level out and in the end also lead to more complex structures. In this process (which has to be seen over decades) the different legal solutions are also played off against each other by people who intend to profit from this. We are still in this process towards a sys- tem worldwide, so for national legislatures it is still a big question whether to have their legal systems more finely tuned and the people running from it or vice versa. Arecent example can be found in U.S. copyright law where, until 1976, in order to be copyrighted, you had to send in your work to be registered. However, with time the law leveled out internationally and since 1977, copyright in the US. is granted automatically, with- out product or application submissions. Even though submission and registration processes are still possible and even recommended, their removal as a requirement was a fundamental paradigm shift in American copyright law. This demonstrates the perpetual evolution of the rule of law and legislation as it adapts to competitive forces in the environment. International topics will be addressed again and again in the following chapters of this book. Don't worry: it’s not about bombard- ing you with oodles of information about foreign countries that may not interest you in the least. Rather, this method of Helping You toHelp Yourself should enable you to get your bearings in most cireum- stances, even in relatively unfamiliar conditions. In any case, seek the advice of a lawyer specialized in international design law concerning issues that cross international juri Now that you've gotten some preliminary insights into the legal apparatus at your disposal, the next chapter will introduce you toa radical new world where you'll learn how to design your own rules for the optimum legal protection of your intellectual property. In the Appendix you'll find an overview of the intellectual prop- erty rights system in several, particularly relevant countries. You'll find more information on the regulations in force in each country and the addresses of their representative agencies and authorities on the Web site of the World Intellectual Property Organization (WIPO, see Appendix). ction! > IPrights allow you for a certain time period to determine who In summary can use your intellectual efforts for how much money and in what way. > The existence of such rights is very often explained by the usefulness of creativity for society. > The Creative Commons movement stems from the notion that intellectual property rights diminish creativity, advocating for a system that allows free usage of intellectual property after a one-time payment. > There are four groups of rights which are important for designers: > design and product-affiliated: copyright, design patent > brand-affiliated: trademark > activity-related: laws against unfair competition > technical: patent, utility model > Copyright, which helps to protect the right of the individual's intellectual creation, is one of the most important forms of intel- lectual property rights for designers ~ but not available for them in all countries. Not at least because of the uniformity of trade- mark laws in most countries worldwide the importance of trade- mark protection is growing rapidly. > Designers in countries or regions with relatively simple legal structures are often at an advantage to those working in places with relatively complex and differentiated legal systems. 29CCooyrights matoriatWhy successful designers don't need intellectual property rights This chapter is about how you can best use the law to your own advan- tage. Those of you who find this approach unusual or even strange are probably under the mistaken impression that the law is static. This at- titude can also be attributed to many lawyers who don’t have much more to offer than references to centuries of legislation and scholarship. We want to align ourselves with Thomas Jefferson. He recommended a revolution every two or three generations. Whether intellectual property rights are absolutely necessary for designers can best be explored by con- sidering a situation where a designer has no intellectual property rights whatsoever. In 2006, the town of Bohmte, in Lower Saxony, Germany, launched 24 a project based on the so-called shared space philosophy. All traffic Shared space: rules were abolished and all road users, from pedestrians to bicy- Aproject lists, cars, busses, and trucks, had to share the road equally. The goal of this project, which had previously been launched in numer- ous towns in the Netherlands, was to explore the effects of fewer and more flexible regulations on the use of public space. Incidentally, the project is being supported with funding from the European Union. ‘The fact that the abolition of rules apparently requires money has nothing to do with our subject, however. Something else is of interest here. In Bohmte, as well as in the other municipalities taking part in the project, a strong trend became apparent immediately. The number of accidents fell dras- tically and traffic on the whole ran more smoothly. According to surveys, there haven't been any serious accidents in the 107 shared space towns in the Netherlands since. However, it should be noted that shared space projects have only been systematically evaluated since 2008. The Bohmte project sets the stage to introduce the concept of shared space in the realm of intellectual property rights. Take a moment to think about what would happen if there were simply 332 2.2 Places without protection no intellectual property rights at your disposal. Would you stop designing? Would you, consumed by fear and frustration, change your career? As the last chapter's findings indicate, probably not. But what would such a situation really be like? What new devel- opments could come out of this unregulated, thus free and unen- cumbered, point of departure? More about this from a revolutionary point of view can be found in Chapter 18. Before it all becomes too abstract, it should be said that there are most definitely areas where designers have absolutely no intellee- tual property rights. For example, in the U.S. where available, fashion designs can theoretically be registered as so-called design patents. However, the application has to meet the same criteria as a regular patent, which we pointed out in the previous chapter will be rejected more than 7o percent of the time. Thus, copyright is simply not a con- sideration for fashion designs in the US., essentially meaning that American fashion designers work without intellectual property rights. You'll find an overview of the intellectual property rights system, in the US.,as well as other relevant countries, in the Appendix. In Germany, one of the most regulated countries in the world, there is one area where designers are left out in the cold without any intellectual property rights, namely Web site design. At best, individ- ual elements such as text, photos, logos, and programming are copy- right protected or protectable, and this may even include the final visual results, However, the communication design in its entirety, including its templates, is virtually unprotected and unprotectable. You'll find an overview of the intellectual property rights sys- tem in Germany, as well as other relevant countries, in the Appendix. More details on the difficulties of protecting works of communi- cation design and Web sites can be found in Chapter 4 Nevertheless, fashion designers in the U.S. and communication designers in Germany manage to survive. There are, incidentally, even more examples of unprotected intellectual property where huge sums of money can be made, including television series formats, cell phone ring tones or book editions where the copyright term has expired. How is this possible if intellectual property rights are supposedly the most important prerequisite to creativity’s economic usefulness? If the reasons for having intellectual property rights were really so solid, none of this would be possible. So why does it work after all, and can you draw conclusions from this that can help your own dealings with intellectual property rights?Yes, designing without intellectual property rights does work, for 2.3 two reasons. How to design First, the possibility to fall back on other protective rights exists _ without intellectual in more or less all legal systems. It's not without reason that brands _property rights are so important in the U.S. It’s true that the triumph of brand- ing and the use of logos have their roots in marketing, but the fact that American fashion labels prominently display their logos is a direct result of this particular legal situation. In the U.S., the so- called Trade Secret also plays a very powerful role by prohibiting the unauthorized disclosure of business secrets. There are plenty of other international examples of legislative safety nets, which will be explored throughout this book. For now, it’s just important to note that, whenever possible, you should thoroughly investigate the existing options for protection in a new market. Don’t necessar- ily assume that the most obvious form of protection is the one best suited to your needs. Second, much can be controlled through contracts, which is exactly what's done in the US. In this way confidentiality, obligations to perform, and restrictive covenants can be contractually defined. The contract might also simply be used to explain in detail what a cli- ent receives without the necessity to establish any particular legal basi ‘These two factors should provide you with some food for thought on how to optimally protect yourself in different legal systems world- wide while maintaining your calm. Furthermore, they can help you to establish another, relatively simple, tactic for international survival, learning from those without rights. Therefore we call this tactic: Learning From Those Without Rights. If all designers walked around pretending there were no intel- lectual property rights, they would be forced to better secure their rights themselves. The aim is to transform subconscious demeanors that preclude accidents in the shared space projects into active defensive strategies that work in alll systems. Learning from those without rights means two things: 24 First, learn what you can from the range of legal alternatives at Learning from those your disposal, Problems with protection ina broad spectrum of without rights design fields are pretty much the same everywhere, yet legal systems are different and people find different solutions. Legal systems are also in competition with one another, which means that they will begin to resemble each other more and more over time. Simply take your own precautions and help yourself to what's legally available. 3334 Designing rules We're thrilled with the idea that the future simplification of legal systems will enable us to spend significantly less time in future edi- tions of this book on questions of law in order to have more time for inspiring revolutionary and innovative topics for every generation (Jefferson again). Second, set yourself up to geta slice of the action. This means, above all, taking care of your own legal problems. The more that is spelled out directly, and the more you anticipate ahead of time, the betteryour contracts and the greater your future prospects. You can handle this very effectively yourself because you are best aware of your special requirements and situation. This allows you to easily draw up contracts yourself and be taken completely seriously by your contractual partners and lawyers. One positive side effect is much greater independence, which is what really sets you free. From the above you can derive the following two core principles for your practice, and you'll find more pertinent information about them in the following chapters: > Document everything - file as much as is necessary and as little as possible. You'll find the essential information on this in the Part// of the book. > Contracts ~ regulate as much as possible yourself. You'll find out what this is all about in the Part III of the book. Before you turn away shuddering, asking yourself if you, a designer, now have to transform into Super Lawyer, remember that perfect con- ditions don’t exist! In your daily interaction with regulations, it’s not a question of how you manage them or even ignore them. It’s about using them to find the best possible solution for yourself and others. You know from your own creative activities that the optimum solu- tion is always relative. This approach can and should be applied to all legal solutions as well. This means that handling legal prob- lems is nothing more than applying design rules. Law is relative. It depends on the circumstances and requirements. You have to take itinto your own hands to find an ideal solution. Butyou're a designer, you can do that.So is it accurate to say that you don’t need intellectual property 25 rights to be a successful designer? To answer this question we return _ Intellectual property tothe example of fashion designers in the U.S. Clearly,the absence _rights vs. competi- of intellectual property rights causes greater economic competition _ tive environment where sometimes not the better but the more financially advantaged competitor wins out. The reason intellectual property rights exist is not because creatives wouldn't work without them, but it’s a way to honor the personality and the efforts of creatives The reason is highly political in nature, Creative businesses are delicate seedlings in the beginning, and they are prone to collapse easily when there's too much economic uncertainty. Ifa society wants to ensure the fair founding of creative enterprises, it has to provide intellectual property rights that guarantee maximum protec- tion of designs and start-up companies with a minimum of prerequi- .s. Even if EU policymakers have yet to come up with the best solu- tion, they are much closer to providing this type of protection than any other place in the world. We should always be suspicious of prophets promising huge freedoms, as has been the case in the public debate over the free use of cultural works on the Internet, This debate is nicely illustrated in Steve Jobs' (CEO of Apple) essay Thoughts on Music, published on February 6th, 2007, on his company's American Web site. Jobs’ essay argued that Apple was always concerned with the freedom and self-fulfillment of the creatives of the world, but unfor- tunately it was forced to sell music through its iTunes Store with Digital Rights Management (DRM) because the evil music industry demanded it of the company. Of course, Jobs didn’t neglect to men- tion that there are only four huge corporations in the music industry that control over 80 percent of the world’s music market. So whatever can Apple do? Apple can continue along the path it has been on so far (but then why write this essay?). Or it can make its DRM more widely available and license it, if you will, across the board to everyone fora few cents. But then someone would certainly reveal the security codes because that’s just how naughty users are, This would mean that Apple would be forced to further develop newer and ever better codes, which would cost unbelievable amounts of money, leading Apple to increase its prices again against its will, so to speak. Well there’s another solution. We could get rid of DRM altogether. Wellyes, of course, we don’t want to destroy the music industry, but that would really be the best solution. So, away with it! 35Manage your intellectual property 36 rights Insummary Well, it’s not hard to guess what all the news tickers were show- ing at the beginning of 2009. The four big music corporations had given their permission to abolish the use of DRM in sales of music files on the Apple iTunes Store. Suddenly so much freedom! But what does this freedom do for individual creatives? It proves the wis- dom of the old saying - be careful what you wish for, you may just get it. Now you've read what's relevant to handling your intellectual property rights. No regulation is ever absolutely right or wrong, but always relative. This is true of national laws as well as stipulations you draft yourself in contracts. This means you will encounter changing circumstances and unpredictable situations where often- times given regulations won't be of much help. The best thing you can dois make your own decisions about how to effectively deal with each case. After all, who can do that better than you!? Lastly, don’t forget your creative strength and your intention to be original and innovative. Take your entrepreneurial position ahead of exploiters, dealers, and mass producers. > Designing without intellectual property rights works because 1) the possibility to fall back on other protective rights exists in more or less all legal systems, and 2) much can be controlled through contracts. > Learning from those without intellectual property rights is a great tactic for international survival. > The more that is spelled out directly, and the more you antici- pate ahead of time, the better your contracts and the greater your future prospects. > Noregulation is ever absolutely right or wrong - it’s always relative. The best thing you can do is make your own decisions about how to effectively deal with each case. To help you do this, as much as possible try to 1) document everything, and 2) regulate your contracts yourself.3 Principles for survival What should you do when your work is being copied? What should you do if someone accuses you of copying their work? The proper conduct in the event of a conflict with someone else’s rights is often just as important as being ina tactically good position. This chapter is designed to provide you with guidelines to help you deal with disputes over plagiarism and similar infringements. Even design professionals with years of experience accept the 34 assertion that one may, up toa certain percentage, copy other Margin of designs. The exact percentage tends to fall into a relatively wide assessment range. for their calculation: Alexander Bretz: I routinely ask the basi What constitutes 100 percent? What parameters are you using? I'm almost always met with baffled silence. Assigning specific percentages as to how much is allowed to be copied is silly and there's no clearer sign of incompetence in this field. Nevertheless, the question of what 100 percent would be can be rather illuminating, if reasoned to the end. Alexander Bretz: Many years ago, one of my clients wanted to convince me of the supposed percentage rule’s validity. He proposed to organize his designs, spice containers with a stainless steel sprin- kle function, according to certain categories, he considered to be representative of his creation, namely the cylindrical form, stainless steel material, height and diameter, sprinkle function, and more. Ifhe could establish, or not establish, respectively, identicalness or resemblance for each of the above categories, he could then specify a percent value for each of them which would add up to the total value of 100 percent. Itried to make it clear to him that the determination of the categories was already random and thus ineffectual. If, for exam- ple, the dimensions were not considered as one category, but rather height and diameter as two, or height, width and depth as three,3.2 What if your designs are copied? Your entitlements incases of copyright 38 infringement the relative proportions of the final product could vary greatly from the original. The same was true of almostall of the other points. For instance, one could easily differentiate between different shapes and opening placements for the sprinkle function. Naturally there were many more categories that had not occurred to him, manufac- turing techniques to name just one. Such supposedly exact rules are always biased and therefore useless, unless they are used as ammu- nition for opposing argumentation. In the legal reality, it comes down to abstract terms and definitions such as newness, character, and uniqueness of the object, or danger of mistaken brand identity. Needless to say, there’s always an enormous margin for interpreta- tion that cannot be expressed in exact percent terms. You'll find more detailed information about intellectual prop- erty rights and how they're defined and assessed in Chapters 7 to 10 inPartil of this book. You can never really be sure before you enter the courtroom whether what you're dealing with is a matter of plagiarism, copying, improper brand usage, or some other related infringement. However, you can find out what is essential in these kinds of disputes. This chapter is not about providing you with an instruction manual for independently solving serious problems with your intellectual prop- erty rights, Rather, it’s a sort of first aid kit that gives you lots of basic knowledge and necessary guidance until the legal paramedic arrives. ‘This information should in no way be considered as a replacement for proper, professional legal treatment! We'll tackle the following important situations, questions, and eventualities: ‘What happens if your designs are copied? What happens if you're accused of copying? What kind of costs can you anticipate? How should you use courts of arbitration and mediation? How should you deal with legal expenses, insurance, and finaneing of legal proceedings? Let's start with the instance that your designs, products, or trade name have been copied. Plagiarism is the term legally applied when someone passes off someone else's intellectual property as their own. Ifyour intellectual property rights have been violated by copying, the first legal objective is naturally to puta stop to this copying immediately. In judicial decisions, injunctive reliefs or injunctionsare stated as an obligation, and they are usually accompanied by the threat of a penalty if violated. In plain language, it says: Cut it out Ifyou do that one more time you'll have to fork over a lot of cash or you'll be locked up. The business of locking up can be a bit tricky since the judgement creditor (as you are called if you win an award against someone in a civil suit) has to pay the costs of imprisonment upfront, which are comparable to four-star hotel accommodations. Asa result, the practical impact of detention threat is virtually nil. Frequently though, damages incurred prior to the injunction have to be settled as well. You'll want to take care of all adverse aspects. In the design sector, this usually means the destruction of any potentially still-existing plagiarized pieces in the hands of the copier, as well as compensation for all damages suffered by you. ‘The basic idea is to force the copier to clear up the damages inflicted onyou. Asa rule, damages consist of a concrete sum of money that is payable by the liable party. When it comes to damages, people seem to have all kinds of wild fantasies, running the gamut from huge lottery jackpots to ultimate revenge. This is as good an opportunity as any to clear up some mis- conceptions. 1, Strictly speaking, damages are only awarded when the injur- ing party is not only to blame for the damages but also caused them. In legal terms, to cause meat if you dismissed the source of the damage from your thoughts, the damage would consequently disap- pear- ifthe damage persists, then something doesn’t quite add up about the source. To cause something implies that the injuring party acted negligently or deliberately. This is usually not difficult to prove in cases of copying and plagiarism, however, it can be much more difficultwhen dealing with accidental similarities. 2. Damages are supposed to put the injured party in the position they would have been in had the infringement of rights not occurred. So it’s neither about a profit, as many clients tend to think, nor about taking the evil plagiarist to the cleaners, Damages always work on, the assumption that actual damage occurred. The courts will make sure that this is quantifiable, or at least to some extent assessable. 3. Damages in the intellectual property rights domain (aside from reimbursement of clearly verifiable damages, including lawyer's fees) can be calculated according to the injured party's preference in one of three ways: > The liable party must compensate the injured party's profit losses. 39Right of access to information Assess your position 40 > ‘The liable party must compensate any profit gained. > The liable party must pay a lump-sum compensation based on standard licensing fees plus a penalty charge of between 30 and 100 percent. It’s important to note that with the first two points we're talking about net profit, not gross income. Therefore it's not enough to know merely what gross figures are under discussion, net earnings must be calculable. This is often difficult in practice, which makes point three the preferred option. Inthe US,, the damages calculated may then be tripled in order to punish the liable party (so-called punitive or treble damages). In order to be able to make a reasonably appropriate decision, you will potentially require more information on the sales figures or the revenues of your copier. These can be legally acquired by obtain- ing a discovery (a forced disclosure). A right of access to information always presupposes an entitlement to damages; therefore, if you can’t demonstrate that you're entitled to damages, you definitely can’t claim this right. Before you rush offwith guns blazing, you should first consider very carefully if the actions of the alleged injurer of your rights are actu- ally illegal, Because, as you will discover after scrupulous reading of this book, this is often not as easy to prove as it may appear at first glance. The following steps have proven to be an effective way to assess this: 1. Try to briefly describe the potential violation of your rights in your own words, to another, preferably uninvolved, person. Pay attention to their face and reaction. Any frowning, requests for clarification, or a lack of understanding on their part should defi- nitely set off alarm bells. In a legal battle, you'll have to explain it toa completely uninvolved third party (for example a judge), and if one person can’t follow you, then... 2. Consider what evidence you have to prove that plagiarism has been committed. Original pieces are better than photos and photos are better than witnesses. Think about your own profes- sion and imagine you had to show an uninvolved person what your work is about. You would surely prefer to pull out an original piece, orat least a visual representation, That's how it works in legal dis- putes as well, the better your presentation, the better your chances of success.3.3 What if you're accused of copying? ro In the tortoise version, the suspected infringer doesn’t do any- thing. The tortoise can be the correct reaction when the opponent is convinced of their innocence or sees the claim as being unfounded. It might appear harmless at first glance, however, they are allowing you towalk straight into a trap, since this maneuver forces you to take the next step and go to court. Ifyou're not successful in court, you'll end up with bigger damages than if they had just clearly explained everything to you from the start. The rooster version is your opponent proudly crowing (ideally in writing!) across the barnyard: Now listen to me, you have no claim against me! It’s plucky, but tactically not very clever, because such letters of defense usually fall on (your) deaf ears. They can even be used against the writer as an assertion. Let's say your opponent responds to an alleged copy by writing, That's not a copy at all! f then the court, possibly with the assistance of an appraiser, reaches the conclusion that it is indeed a copy, you can at this point use your opponent’s earlier assertion to prove their intent, and thus get awarded your damages more easily. ‘This leaves the ninja version, which the opponent uses when they feel extremely confident and decide to proceed aggressively. In this case, they simply turn the tables and file a suit against you for having wrongfully accused them ofan unlawful act. This leaves you with no other option but to prove your claim in court. It still remains to be said how the story continues in the tortoise and rooster versions. As mentioned, in both of these cases your next step leads to court. Either your lawyer now files for a temporary restraining order (TRO) - although that only works when directly linked to an injunctive relief - and it prevents further damage only temporarily; or they file for an injunction or injunctive relief right away, which enables the court to make a conclusive ruling about the lawfulness or unlawfulness of certain behavior. Ifyou weren’t convinced of the necessity of legal advice before, hopefully by now you've changed your mind. As you can see, the proceedings are not exactly laid-back, and there are lots of potential pitfalls, even for the most conscientious designer. The fine line between law and justice can more often than not be drawn based on how the legal procedure is managed. Knowing what to do if someone else accuses you of copying their designs or compromising their brand identity is justas, ifnot more, important than knowing how to press charges. You already have ageneral idea of how the process works, so here are just a few more tips on how to conduct yourself on the other side. In most instances, you'll notice that someone is angry with you even before the formal cease and desist letter is ii ued. For examp! you might be proudly displaying your work at a client's stand during a trade show when another designer approaches you, red in the face, claiming that your work is just a lousy copy of their design. This kind of situation is highly unpleasant and bad for you for two reasons. First of all, it sheds a negative light on you in the eyes of your client. Even if the accusations are quickly laid to rest, a certain aftertaste will linger. Second, you might end up saying things in front of wit- nesses that could be damaging later on. Aswith all exceptional situations in life, you should try to stay calm, Don’t let yourself be drawn into a discussion, and don’t sign anything presented to you in such a situation, Ifthere’s any substance to the matter you will subsequently receive Acease and desist the aforementioned cease and desist letter. You learn about thealle-__letter arrives - what gations against you for the first time in this letter. This is the time now? to seek get some clarity. Apply the same checklist used to consider whether to make a claim against someone else, but in reverse. Try to do this as quickly as possible, as time is of the essence in these con- flict 1. Again, try to describe any possible infringement as briefly and factually as possible to an uninvolved third party. Observe their reaction and take it seriously. If they don’t understand at all what you've been accused of, that’s already a good sign. But be careful, it’s not as clear-cut as it was the other way around. 2. What evidence do you have to refute the accusation of plagia~ rism? Remember, original pieces are better than photos, and photos are better than witnesses. Work under the worst-case scenario assumption meaning that your opponent has all the evidence they need in order to successfully bring charges against you. 3. Carefully consider what you want given the worst-case sce- nario! What can you (and do want to) offer to get this conflict resolved? What direct and indirect risks are you taking by going to court? Read up again on the options for potential reactions to a cease and desist letter, and consider your white flag, tortoise, rooster, and ninja options. Also bear in mind the possible collateral damage of your conduct, including any actions that might lead potential or actual business partners to lose confidence in you. 43Mediation 3.6 Legal expenses, insurance,and financing of legal 46 proceedings enforceable. This makes an arbitration verdict as legally binding as aruling from a public court of law. Mediation, on the other hand, which can also be agreed to by both parties, is never resolved by a ruling. Rather, it attempts to bring about an amicable settlement between those involved. The uncer- tainty of its outcome gives some people the wrong impression and makes it seem less appealing than arbitration. However, practical experience has shown that even parties that are very much at odds with one another at the beginning of mediation often reach an ami- cable, thus workable, solution at the end. A further advantage is the fact that both parties contribute to the outcome, and thus, enforce- ment of the ruling (potentially required) becomes superfluous. By the way, the settlement in mediation proceedings can also be drawn up as an enforceable document, in which the agreement is laid down in writing and signed by the lawyers representing both parties. You can receive free and nonbinding advice and information in English and German on the possibilities for mediation or arbitra- tion proceedings in the design sector by writing to: institut @unternehmendesign.de. Naturally, it's advisable to have insurance coverage for the costs associated with intellectual property rights disputes. A policy that covers all of the above-mentioned risks and even out-of-court set- tlements would be ideal, but, as is often the case with ideals, such a policy just doesn’t exist in real life. At best, insurances plans cover conventional conflict situations with foreseeable and limited risks. It’s the only way to keep insurance premiums low enough to gener- ate the impression of providing sufficient coverage for what most people regard as completely unforeseeable risks. ‘The risks associated with intellectual property rights disputes are understandably not very appealing to insurance companies. This is first and foremost due to the fact that these companies are largely dependent on the insured party's personal behavior, which, unlike road traffic, is not tightly controllable and highly regulated. In addi- tion, there is great uncertainty when it comes to the legal procedures necessary, and there is insufficient data for calculating the statistical probability of failure. For these reasons, disputes over intellectual property rights are not part of any legal expenses insurance plan. Out-of-court counsel and proceedings are also excluded from coverage (except in divorce cases).CCooyrights matoriatChecklist for cease and desist letters Ifyou want to issue a cease and desist letter: Attempt to describe the alleged violation of your rights in your own words, briefly, to someone else (preferably someone unin- volved). Pay attention to their face and reactions - frowning, requests for clarification, ora lack of understanding on their part should definitely set off alarm bells. In a legal battle, you'll have to explain things to a completely uninvolved third party (ajudge, for example), and ifyour test person can’t follow you, then chances are others won't be able to either. Consider what evidence you have to prove that plagiarism has been committed. Original pieces are better than photos and photos are better than witnesses. Think about your prof and imagine you had to explain the nature of your work to some- one with no previous knowledge of it. You'd surely prefer to pull outan original piece or at least a visual representation. It works like this in legal disputes as well: the better your presentation, the better your chances of success. ion Consider what you want to achieve. Use the legal entitlements mentioned in Chapter 3 asa guide. You may also want to give some thought to how much to ask for in damages and whether, at the end of the day, the matter is financially really worth pursu- ing. Even in a best-case scenario where you ride outalll of the legal battles triumphantly, you usually still have to finance the legal proceedings yourself. Byall means, engage a lawyer specialized in these kinds of dis- putes. And take this advice seriously, firstly because this isn’t necessarily recommended in many other parts of this book, thus it's a very genuine piece of advice, and secondly, because there’s alot of truth in the saying, “defend yourself and the devil will be your advocate.” Even lawyers choose to be represented by col- 49leagues because they recognize that their self-perception and consequent self-management lacks the necessary objectivity and professional distance. Besides, wouldn't you rather do something more constructive with your time than quibbling? One last tip: if your lawyer advises you against taking legal action, take them at their word. Lawyers usually have no interest in avoiding legal action, unless they're sure that it's awaste of time and effort. Getting a second lawyer's opinion is only worthwhile when the first one attempts to give you the impression that eve- rything will turn out in your favor. This simply won't be the case. Ifyou receive a cease and desist letter: Keep calm, but react quickly! Again, try to describe any possible infringement as briefly and factually as possible to an uninvolved third party. Observe their reaction and take it seriously. If they don’t understand in the slightest what you've been accused of, that’s already a good sign, but be careful - it’s not as clear-cut as it was the other way around! ‘What evidence do you have to refute the accusation of plagia~ rism? Remember, original pieces are better than photos, and photos are better than witnesses. Work on the assumption of a worst-case scenario for you ~ meaning that your opponent has all the evidence they need in order to successfully bring charges against you. Carefully consider what you want in the worst-case scenario. ‘What can you (and do you want to) offer to get this conflict resolved? What direct and indirect risks are you taking by going to court? Review the options for reacting to a cease and desist let terin Chapter 3, and bear in mind as well the possible collateral damage of your conduct, including any actions that might lead your prospective or current business partners to lose confidence inyou. Byall means, seek the services of a lawyer specialized in these kinds of conflicts! Remember to take unpleasant counsel seri- ously and, in turn, to question any counsel that leaves you feel- ing warm and fuzzy.extent, considered coequal - as photos. Any image editing is consi ered modification, which is also copyright-protected. Aweb page that displays this photo may be protected as a computer program, while the whole composition is not protected at all. Here we'll discuss the specific legal considerations in the field of 43 industrial and product design. First, an overview: Industrialand product design > Copyright for designs: explicitly excluded in all countries except for Germany, where there are particularly high requirements for product design. > Registered and nonregistered design rights: rarely possible outside of the BU. > Ability to trademark designs: possible only ifit’s not purely about the the exterior form of the product. Product design is characterized by designs with a relatively long product life cycle. There aren't very many independent design stu- dios and those that do exist are predominantly in the realm of furni- ture design. The industry, including all the automobile and consumer electronics companies, usually has its own design departments and mainly engages independent design studios for, what they consider, peripheral business areas (including interface design for electronic dashboard instruments or textile design for car upholstery). ‘The automobile industry's considerable political influence (which stands in direct contrast to its future relevance) has, in par- icular, led to product design to be maximally accommodating to the industry. In traditional car-manufacturing nations, the industry’s lobby groups have ensured that there are frequent provisions cre- ated to meet their needs. ‘The needs of the automobile industry aren’t exactly the same as those of designers working in other fields within this subsector. For these designers, the question of intellectual property rights has to do with whether copyright can be awarded or not. This is espe- cially relevant due to the exceptionally long period of protection in this sector. Protection through a registered design patentis, in many cases, sufficient; however, precisely in cases of designs that become classics, a design patent is unsatisfactory. Literary works, as economically noncomplex creative products, enjoy copyright in most countries long after the author's death. In contrast, highly complex creative products, such as furniture classics, enter the public domain long before the death of the 5344 Interior design 45 Fashion and textile design designer. To make it even trickier, there are substantial differences in intellectual property rights systems from country to country. This, in combination with varying international surveillance cus- toms, makes the importing of plagiarized products easy. In the absence ofa legal structure which is consistently tailored to the needs of designers, the current intellectual property rights systems has no future and represents more of an obstacle than a support mechanism for creative innovations in the field of product design. Here we'll discuss the specific legal considerations in the field of interior design. First, an overview: > Copyright for designs: protected as an overall work of architecture. > Registered and nonregistered design rights: not possible, even in the EU. > Ability to trademark a design: low. Ofall the design subsectors, interior design has the most obvi- ous proximity to architecture, including its working processes. Asa result, much like in architecture, the focal point of legal protection lies in copyright. There's a very long period of protection of 7o years, after the death of the interior designer. It's als . luckily, very easy to determine the moment of creation or manifestation upon comple- tion of the particular project or object (especially when there are publications about the project). More details on copyright law can be found in Chapter 7. In terms of intellectual property rights, interior design is by far in the best position. And it’s precisely this difference that makes the limited legal protection of the other design fields so evident. Here we'll discuss the specific legal considerations in the fields of fashion and textile design. First, an overview: > Copyright for designs: automatic for fashion designs in the EU, explicitly excluded in most other countries. > Registered design rights: possible in the BU, but due to reasons of cost not realistic; nonregistered design rights are crucial in the EU. > Ability to trademark a design: substantial, if the logo is included in the composition of the design.image not availableimage not available5 Negotiating contracts Many designers have concerns about handling their professional negotia- tions. Often as they enter into talks with bosses or clients about contrac- tual conditions, they feel uncertain about how to behave, broach delicate issues, and define their interests and positions. Should they wait until the counterparty brings their terms to the table first? Is it okay to take the first step? How does one argue and make demands without snubbing the other party? How will the other party react? How does one successfully get a point across? If these are the kinds of questions that also preoccupy you, then it’s time to get to the bottom of these uncertainties and turn the tables on your perception of negotiation. Most people have huge reservations about handling theirownnego- 5. tiations. Asking fora raise is a classic example of this. Of course, Your attitude, there are some natural talents out there who successfully negotiate _ predisposition, and come out on top without difficulty. Such individuals are usually and skills viewed with a mixture of admiration and envy: They're just good at it, you might say to yourself. Unfortunately, this is frequently followed by the conclusion: And I’m not, it’s just not my thing. Try to avoid such generalizations because everyone is capable of improving their negotiation skills. Even you can familiarize yourself with some of the basic principles and use every available opportunity to prepare and practice them, Ifyou're afraid that this book is going to mutate into a How to become a successful negotiator in just a few easy steps self-help book, don’t worry. We've encountered a large variety of negotiations in our practice and have learned a great deal in the process. We'd like to share our experiences and those of others with you in this chapter. The priority here is to take the art of negotiation off its unreach- able pedestal and examine it up close. It’s easier than you think. Let's start by considering how you enter into a negotiation.image not availableimage not availableIndex A aggression, positive 72 amendments and additions to the contract 204 American Law Institute 210 antiaggression training 73 Anticybersquatting Consumer Protection Act (ACPA) 137 antitrust laws 139 Apple 35 application 91 arbitrary courts 218 arbitration 45, 218 assertiveness 74 ing rights 77 assets 78 avoiding liability 207 B balance sheet 78 Bang & Olufsen A/S 122 Barks, Carl 147 Basel II 84 basis for calculations 193 battle of forms 201 Bauhaus designs 96 best-case scenario 61 Bohmte 31 brand-affiliated rights 129 brands 33 brand symbol 91 British Rail 149 brownnoser trip 16 bureaucracy factor 93, 101, 103, 117 buyouts 191 c capital 78 Caves, Richard E. 167, 192 cease and desist declaration 41, 44 cease and desist letters 41, 43, 44,49 challenge trip 16 Cheapest Cost Avoider 161, 162, 211 Cheapest Insurer 161, 166, 212 children’s toys 214 chili pepper strategy 73 China 27,126,142 classification 121 Coase, Ronald 159 collateral 84,173 Commander 61 commercial exploitation 148 communication design 32, 54,52 Community Trade Mark (CTM) 117,122 Constitution of the United States of America 24 consultation fee 195 consulting services 184 content definition 182 contract 158 contract of sale 201 Contracts for the International Sale of Goods (CISG) 216 contractual obligations 208 contractual penalty 41 contractual provisions 160 333copying 38 copyleft symbol 90 copyright 25,93 Copyright Act 95 copyright laws 24,94 copyright law system 25, copyright legislation 25 copyright notice 134 copyright-protected 52 copyright protection 55,93 copyright symbol 90 cost factor 93, 101, 103, 118 COUNCIL REGULATION (EC) 105, 118 Creative Commons 25 creative commons symbol 90 creative industries 235, creative skills 59 cultural and creative industries 24 cybersquatting 137 D debts 78 Decision Maker 61 delivery date 202 demerger 82 Denmark 235 Design Agreement 219 Design Business 58, 74,81, 187, 196 design contract 204,219 design disciplines 51 designer's services 177 design fee 187 Design Future 58 design industry 13, 52,235 design patent 53,95, 101 design patents 32 design rights 89, 113 design symbol 91 Deutsche Bahn 251 development ofa design 177 Digital Rights Management (DRM) 35 334 diplomatic service training 60 distinction 118 Donald Duck comic called The Sunken Yacht 147 Duplo 122 E Eames, Charles and Ray 183 Economic Espionage Act 135 economy of scale 70 Elf-Acquitaine 121 Engelke, Anja 245 enlargement of the cake 66 entrepreneurs 16 entry controls 93, 101, 103, 117 environmental liability 213 equal treatment with nationals 28, 125, EU Community Trade Mark 126 Europe 239 European Community Design 103 European Patent Convention (EPC) 151 European Patent Office 151 European Tribunal of First Instance 122 European Union (EU) 27, 102, 109, 140 EU-wide registration 103 exclusive rights 107, 123 exhibition priority 105 F fashion and textile design 52, 54 fashion designs 32 Federal Trade Commission 136 fees 187 Ferrero 122 Fischer-Roehler, Alexandra 249 Flanbaum, Torben 145 form 118 form follows function 96 Frederick, Charles Osmond 149 fulfillment strategy 162 future 235G General Agreement on Tariffs and Trade (GATT) 123 general considerations 166 Geneva Act 111 Geneva Phonograms Convention 91 Geneva Trademark Law Treaty (TLT) 124 geographical definition 182 German antitrust law 142 German Federal Supreme Court 138 German Product Liability Act 213 Germany 142 globalization 235 globalization factor 93, 101, 103, 118 granting of usage rights 181 Great Britain 26, 104, 142 Great Britain's unregistered design 236 gross sales figure 69 H Hague Act 111 Hague Convention 151 Henze, Karsten 251 Herman Miller 183 Hickmann, Fons 253 1 ideas 89 Indian design law 97 Indian trademark law 236 individual character 105 industrial and product design 51, 53 industrial design patent 26 industry differences 192 inheritance factor 93, 101, 103, 118 injunctive relief 42 insolvency 82 insurance 46,174 intellectual property rights 24, 89 intellectual property rights disputes 44 intellectual property rights systems 54 interest 202 interior design 51, 54 International Accounting Standards (IAS) 80 international business 215 international contracts 215 international copyright treaties 109 International Financial Reporting Standards (IFRS) 80 international jurisdiction 216 internationally harmonized legal system 235 international terms 215 Internet Corporation of Assigned Names and Numbers (ICANN) 138 Internet domain names 121, 137 inventory 81 IP rights 99, 102, 108, 123, 139, 145 iTunes Store 35 J Jaguar 119 Japan 26,142 Japanese copyright law 236 Japan Fair Trade Commission 142 Jefferson, Thomas 31 Jobs, Steve 35 judgement creditor 39 jurisdiction and applicable law 204 K Kant, Immanuel 94 Kroyer, Karl 147 Kithl, Johanna 249 Kunstlersozialabgabe 70 L Lanham Act 136 Lasercomb America 139 law against unfair competition 142 Lawand Economics 159 Learned Hand's Formula 161, 163 335Learning From Those Without Rights 33 legal fees 44 legislative safety nets 33 Lessig, Lawrence 25,239 Levy, Arik 255 liability for design 210 liability insurance 212 liability risks 212 liable party 39 license contract 80 licenses 83 licensing fee 68, 69, 80 limitations 99 limitations and exclusions of liability 203 limited liability 211 liquidated damages 171 loan security 174 logos 33 London Act of the Hague Agreement 91 Lotter, Wolf 17 M Madrid Agreement Concerning the International Registration of Marks 124 Maise, Eckart 235, 257 market launch 70 mark free 120 meaning 118 mediation 45 mediation activities 185 mediation services 196 MENUAVS 145 microeconomic theory 159 Minol 121 music market 35 mutual obligations 64 336 N namely copyright 89 negotiation process 58 negotiations 57 Negotiator 61 Netherlands 31 newness 105 Nice Classification 121 nightmare trip 16 Nondisclosure Agreement (NDA) 134, 162 nongovernmental court of law 45 notice of confidentiality 134 ° Oehler, Justus 259 OHIM 27 Open Design Club 25 open-source 25, outward appearance 104 Pp Paris Convention 151 Paris Convention for the Protection of Industrial Property 124 passing of risk 202 Passman, Donald 190 Patent and Trademarks Office (PTO) 95 patenting procedure 148 patent lawyer 148 patent priority 150 patents 26,145 patents worldwide 151 payment deadlines 202 pedestrian lights 15 Pentagram 259 personal intellectual creation 89 phonorecord symbol 91 photographic novelty 105 pictorial marks 119 pitch fee 197 plagiarism 38 Posner, Richard 159Post-it notes 148 precedence 160 preproduction costs 69 presentations 165,175 price components 202 primary rights 23 prior art 146 priority 96 product-affiliated rights 113 product liability 212 product's life cycle 70 product symbol 91 profit factor 93, 101, 103, 118 prompting 65 proof (self-documentation) 92 protection of ideas 89 protective clause 201 public court of law 45 Q Quah, Danny 239 R reciprocity principle 64 reduction of the royalty rate 193 Registered Design right (RCD) 25, 104 registration 91, 108, 125 reimbursement of expenses 185, 196 reservation of title 202 resolutive condition 60 Revised Berne Convention (RBC) 109 Reynolds 139 Riemann, Fritz 72,74 right of termination 172 right of withdrawal or return 203 rights, moral 99 rights worldwide 108 rigths, exploitation 99 risk planning 162 Rome Convention 91 royalties 191 rules of combining 193 s sales figures 70 sample contracts 168 self-knowledge 169 self-motivation 58 Sen, Amartya 236,239 service design 52 shared space 31 Shell 138 sheltering 69 Singapore Treaty on the Law of Trademarks (STLT or Singapore Treaty) 124 SMART formula 61 specialized financial backer 47 standard amount fora buyout 194 standard amount for royalties 195 standard bank loan 47 statute of limitations 173 Stim, Richard 94 sublicenses 195 Superior Risk Bearer 161, 166 suspected infringer 41 symbols 90, 116 T tactic, circumstances 70 tactic, empathy 71 tactic, patronizing 68 tactic, relief 72 tactic, surplus 66 tactic, surprise 67 temporary restraining order (TRO) 42 Terms and Conditions 199 The FBI Method 61 The Harvard Method 60 Third Restatement of Torts 210 three-dimensional marks 122 time definition 183 Total 121 trademark 26 trademarkextension 125 trademark infringements 126 337