Differences in Immaterial Details: Dimensional Conversion and Its Implications for Protecting Digital Designs Under EU Design Law

Research output: Contribution to journalArticleScientificpeer-review

Abstract

The paper considers three main questions: the legal status of digital designs from the perspective of EU design law, whether the protection is tied to the reproduction of physical products, and whether the scope of protection covers dimensional conversion such as using a 3D design in 2D form or vice versa. There are two sets of views regarding dimensional conversion: the “abstract” and the “concrete” view. These two different attitudes towards the scope of protection influence the manner in which the protectability of digital designs is assessed. In the “abstract” protection, it would not matter whether a product only exists as a digital image and not as a physical shape. In the “concrete” view, the protection of digital designs is more problematic, as the scope of protection is often tied to the reproduction of an actual physical product. The paper argues that, under CJEU jurisprudence and EUIPO practice, most of the open questions regarding the protection of digital designs and dimensional conversion can be considered as solved. The CJEU has chosen “abstract” protection over “concrete”, thus broadening the scope of protection at the EU level. This means that the digital use of non-digital designs can now be seen as infringing. As a consequence, in the future, right holders should put more care into evaluating the limitations and exceptions. The paper points this out with regard to the issues that are of relevance for the gaming industry, as this is where the use of digital designs is most versatile and relevant.
Original languageEnglish
Peer-reviewed scientific journalInternational Review of Intellectual Property and Competition Law
Volume52
Issue number2
Pages (from-to)137-168
Number of pages32
ISSN0018-9855
DOIs
Publication statusPublished - 21.01.2021
MoE publication typeA1 Journal article - refereed

Keywords

  • 513 Law
  • designs
  • EU law
  • scope of protection
  • limitations
  • exceptions
  • video games

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