États-Unis d'Amérique
Dessins et modèles industriels
12. Please describe the methods by which industrial designs are protected in Japan, in particular: (a)the form or forms of intellectual property used to protect the design (e.g., patent, copyright, sui generis); (b)the conditions that must be satisfied to obtain the grant of such protection (e.g., whether designs must be new or original and the parameters of these concepts), and a brief description of the registration or granting procedure; (c)the nature of the rights granted and the term of protection provided; (d)the nature of remedies available to the owner of each type of protection, including a description of the conditions that may be imposed (e.g., whether commercial use is required); and (e)whether any exceptions to protection or rights exist for each type of intellectual property involved.
(a)In Japan, industrial designs are protected by the sui generis system, i.e. the Japanese Design Law. (b)The criteria for a grant of protection under the Japanese Design Law is whether a design is new or original. Designs that do not significantly differ from designs or combinations of designs in the public domain are not considered new or original. "Designs in the public domain" represent designs known to the public, and those shown in publications distributed, inside and outside Japan. The registration procedure consists of filing an application, formal and substantive examination, and registration. A detailed flowchart is appended. (c)Under the Japanese Design Law, a design right is defined as an exclusive right to work a registered design, and a design similar to it, for business. In this context, the term "working" includes "manufacturing" which corresponds to "making" referred to in the TRIPS Agreement, "assigning" which contains "selling" referred to in the Agreement and "importing" (see Articles 23 and 2(3)). The term of protection amounts to 15 years from the date of registration (Article 21). (d)Under the Japanese Design Law, the owner of a registered design shall be entitled to claim an injunction and compensation for damages (see Articles 37, 39 and 40). The commercial use of the design is not required to obtain such remedies. Infringement of design rights may incur a sanction of a criminal penalty (Article 69). Article 21(1) of the Japanese Customs Tariff Law prohibits the importation of goods which infringe design rights. A design rightholder may provide the Japanese Customs Authorities to control infringing goods at the border with information on prohibition of importing such goods based on the Guidelines Concerning the Control of Goods which Infringe Intellectual Property Rights (Ministry of Finance, Customs and Tariff Bureau, Document No. 1192, 28 December 1994). (e)Designs which are contrary to public order and morality are not registrable (see Article 5(i)). A prior user of the design in good faith may be allowed to use the design (see Article 29).