A1 Journal article (refereed)
Differences in Immaterial Details : Dimensional Conversion and Its Implications for Protecting Digital Designs Under EU Design Law (2021)

Antikainen, M. (2021). Differences in Immaterial Details : Dimensional Conversion and Its Implications for Protecting Digital Designs Under EU Design Law. IIC : International Review of Industrial Property and Copyright Law, 52(2), 137-168. https://doi.org/10.1007/s40319-020-01010-0

JYU authors or editors

Antikainen, Mikko

Publication details

All authors or editors: Antikainen, Mikko

Journal or series: IIC : International Review of Industrial Property and Copyright Law

ISSN: 0018-9855

eISSN: 2195-0237

Publication year: 2021

Publication date: 21/01/2021

Volume: 52

Issue number: 2

Pages range: 137-168

Publisher: Springer

Publication country: Germany

Publication language: English

DOI: https://doi.org/10.1007/s40319-020-01010-0

Publication open access: Openly available

Publication channel open access: Partially open access channel

Publication is parallel published (JYX): https://jyx.jyu.fi/handle/123456789/73867

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.

Keywords: intellectual property law; design rights; protection of patterns and designs; design (artistic creation); game design; digital games; video games