"... Unless by the judgement of his peers"

Jury trials have long been a feature of the common law, and a right at criminal law enshrined by Magna Carta in 1215. We had juries in England for patent trials right into the 19th century, and of course they remain an active feature of US patent and design litigation (though this is not uncontroversial: see this discussion on Prof. Crouch's excellent Patently-O site).

But does a patentee get "the judgment of his peers"? A standard jury is selected from the general public at random, after exclusion of lawyers and others in the legal trade, and in many cases consists of those who lack the intellect to escape jury duty. Is it fair to expect a decision on a patent or design issue from the man in the street?

It was not ever thus. When jury trials were the norm for civil matters in the UK, "special juries" were often empanelled, consisting of people from the trade concerned. The system seems to have died out (at least for City of London financial cases) as late as the 1970s according to Vidmar.

Professor Mario Franzosi's excellent JIPLP article Design Protection Italian Style discusses the institution of the Italian Design Jury, which provides opinions on design subsistence and validity, and we note that in the recent Swedish Maglite case (discussed on Class 99 last month) the Supreme Court followed an opinion on copyright subsistence of the Copyright Panel of Svensk Form, the Swedish Society of Crafts and Design. Juries, such as for example Red Dot's jury, are common enough in judging excellence in design. Could something like this work for design cases in common law countries? Or would a jury of designers be too harsh a tribunal for an essentially consumer-focussed intellectual property right?

Evian revamps its bottle with a little joywashing

BrandChannel has just published a neat piece on the collaboration of bottled water company Evian and designer Paul Smith to put a bit of sparkle not into its products but into its bottle design. The feature notes:

"In the bad old days when water was a status symbol, packaging values emphasized luxe cues: elegant typography, sleek curves, and delicate surface treatments. The purported functional benefit was purity, an image conveyed by a general tendency towards minimalism. But luxe is out, and now that the display of wealth is considered distasteful, premium water is searching for relevance to the cultural mood.

That's why the choice of Paul Smith, a designer known for his whimsical, childlike approach to the world, is interesting. His vibrant stripes, which would have run counter to the pure luxury of the past, now speak to a downtrodden elite eager for permission to let loose a little. The colorful, energetic treatment is also a perfect expression of the new functional benefit embodied in Evian's positioning, "live young," which attempts to shift water away from an association with materialism and overconsumption towards hydration as health and vitality".

This looks like an effective use of design as product differentiation. The fun for legal practitioners comes in counting the number of registered and unregistered rights one can bring to bear when seeking to protect the totality of the newly-designed product and its component parts.