Gentlemen prefer blondes, but Swedes prefer faxes ...

The brand-new issue of OHIM's Alicante News dedicates its monthly design focus to the largely blond(e) jurisdiction of Sweden, the monarchy where the krona is king.  Says the report:

"With over 10,000 registrations since 2004, the registered Community design is popular with Swedish undertakings. Last year there were more than 1,400 RCD filings with classes 8, 14 and 23 in highest demand.

The majority of Swedish filers prefer the online route, with over 65% now using e-filing. However, fax continues to be popular at 23% and mail accounts for 12% of filings".

Can any reader account for the mysterious popularity of faxes in Sweden?  Why should it be so different from Spain, where e-filings and traditional post account for 96% of filings?  Does this reveal something of the Swedish psyche?  I think we should be told.  Anyway, the Top 10 Sweden-based owners of registered Community designs, by number of RCDs filed, are as follows:

SCA HYGIENE PRODUCTS AB 621
Sony Ericsson Mobile Communications AB 571
Aktiebolaget Electrolux 550
Dresser Wayne AB 548
Svedbergs i Dalstorp AB 403
ANZA AB 352
Gambro Lundia AB 342
Eggtimer Kitchengadgets Inter AB 321
HTC SWEDEN AB 320
HL Display AB (publ) 308

Technical functionality? Start using the correct fax number!

What a missed opportunity for the world of design law – the first case on a Community design’s mere technical functionality having reached Luxembourg, with the vague hope that the apparent disharmony between what the England and Wales Court of Appeal decided in Landor on the one hand and OHIM’s Board of Appeal (here) and, very recently, the England and Wales High Court of Justice in Dyson (reported by class99 here) on the other would yield to Europe’s General Court Solomon-like final chord.

However, the Swedish owner of the invalidated Community design and applicant in the following court proceedings failed to lodge the action at the Registry of the Court in time. Rather, the applicant conceded that the action was lodged late, this lateness resulting from a “genuine misunderstanding of the established practice” for lodging an application with the General Court. In fact, the applicant had lodged the application well within time but only at the offices of OHIM, “in accordance with a well established practice in Sweden”

Unsurprisingly, the General Court dismissed the action as “manifestly inadmis-sible”, meanwhile having been confirmed by the Court of Justice of the European Union rejecting the two grounds of appeal as “clearly unfounded”.

And the lesson of all this? Formalities are much more important than lawyers may believe (and than they tell their clients) – further need for harmonization?

"... 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?

Maglite illuminate the scope of Swedish copyright

Maglite Instruments won a copyright victory over IKEA in Sweden's Supreme Court, in a case which has been running for a decade, according to the International Law Office report by Håkan Borgenhäll and Lulu Li of Advokatfirman Lindahl. The result is that their mini Maglite(TM) torch, marketed in 1980, will now be protected for life+70 years as a work of applied art.

Is this perhaps a little generous? Should the Supreme Court treat themselves to a reading of the late Sir Hugh Laddie's grouchily brilliant 1995 Stephen Stewart lecture, "Copyright, Over-Strength, Over-Regulated, Over-Rated," 18 E.I.PR. 253 (1996)? Or is this moderate by comparison with the perpetual trade mark protection Maglite have been granted in Japan and elsewhere?

Perhaps there is a gleam of sense in the Swedish judgment - it appears that they noted the relatively low level of originality, and the limited design freedom, and adopted an approach closely resembling that of the Community design regime - limited design freedom lowers the creativity required for protection, whilst shrinking the scope of the protection granted. We can perhaps live with life+70 years (approximately thirty times the protection available via unregistered Community designs, and at least thrice that available to registered designs) if the quid pro quo is narrow infringement rights.