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become a successful designer protect and manage your design
Joachim Kobuss Alexander Bretz Arian Hassani BECOME A SUCCESSFUL DESIGNER PROTECT AND MANAGE YOUR DESIGN RIGHTS INTERNATIONALLY Imprint Joachim Kobuss Alexander Bretz Arian Hassani Translation from German into English: Rose Tizane Merrill, Berlin Art work, cover, and typography: Erik Spiekermann & Thomas Walsch, Edenspiekermann, Berlin Illustrations: Liv Andrea Mosdøl, Gvarv, Norway Layout: Sven Schrape, Berlin Proof reading: Karin Huck, Basel Project management: Robert Steiger (Birkhäuser) A CIP catalogue record for this book is available from the Library of Congress, Washington D.C., USA. Bibliographic information published by the German National Library The German National Library lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.d-nb.de. This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, re-use of illustrations, recitation, broadcasting, reproduction on microfilms or in other ways, and storage in databases. For any kind of use, permission of the copyright owner must be obtained. This book is also available in a German language edition (ISBN 978-3-0346-7643-7) © 2013 Birkhäuser Verlag GmbH, Basel P.O. Box, 4009 Basel, Switzerland Part of De Gruyter Printed on acid-free paper produced from chlorine-free pulp. TCF ∞ Paper: Munken Print White, 100 g/m2 Typeface: Arnhem, Akkurat Printed in Germany BECOME A SUCCESSFUL DESIGNER PROTECT AND MANAGE YOUR DESIGN RIGHTS INTERNATIONALLY ISBN 978-3-0346-0101-6 987654321 www.birkhauser.com BIRKHÄUSER Basel Table of Contents Preface Joachim Kobuss 13 Introduction Part I Alexander Bretz 15 Exploiting rights 20 1 1.1 1.2 1.3 The legal framework for design in a globalized economy Creativity, law, and money Intellectual property rights relevant to designers International legal relations 2 2.1 2.2 2.3 2.4 2.5 Why successful designers don’t need intellectual property rights Shared space: A project Places without protection How to design without intellectual property rights Learning from those without rights Intellectual property rights vs. competitive environment 3 3.1 3.2 3.3 3.4 3.5 3.6 Principles for survival Margin of assessment What if your designs are copied? What if you’re accused of copying? So what does it cost? Arbitration and mediation Legal expenses, insurance, and financing of legal p roceedings 37 Checklist for cease and desist letters 49 23 31 7 4 4.1 4.2 4.3 4.4 4.5 How the law applies to the different design fields The design disciplines: distinct, yet overlapping Communication design Industrial and product design Interior design Fashion and textile design 5 5.1 5.2 5.3 5.4 Negotiating contracts Your attitude, predisposition, and skills Negotiation techniques in practice Negotiating contracts: some real life examples Typical negotiation situations and how you should handle them 5.5 Your positive potential for aggression 6 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 The value of intellectual property rights When is the value of intellectual property rights assessed? Intellectual property rights on the balance sheet Using licensing contracts as a basis for value assessment Assessing the value of intellectual property rights in partnership agreements Trademark protection through a demerger Licensing agreements and insolvency Trademark licenses and abstract licenses Using intellectual property rights and licenses as collateral Part II Creating rights 8 7 7.1 7.2 7.3 7.4 7.5 Design and product-affiliated rights – copyright and design rights What you need to know about designs and products Copyright Design patent Registered and unregistered design rights (EU only) Design and product-affiliated rights worldwide Checklist for design and product-affiliated rights 51 8 8.1 8.2 8.3 Brand-affiliated rights – protecting trademarks and trade names Trade names: so what’s in a name? The trademark Brand-affiliated rights worldwide Checklist for brand-affiliated rights 115 129 57 77 9 Activity-related rights – provisions in competition law 133 9.1 Trade secrets: protecting yourself when pitching and presenting 9.2 Palming off: the trademark’s tough little sister 9.3 Cybersquatting: the rules of the game in conflicts over domain names 9.4 Misuse of patent and copyright as an issue of antitrust laws 9.5 Laws against unfair competition worldwide 10 10.1 10.2 10.3 Technical rights for designers – patents and utility models Patents Utility model Patents worldwide Part III Wording contracts 86 89 113 145 154 11 11.1 11.2 11.3 11.4 The search for the ideal contract The contract as concept Law and Economics Sample contracts Customization of the legal consequences 157 Checklist for presentations 175 12 12.1 12.2 12.3 12.4 12.5 12.6 Defining your services in contracts The range of services Development of the design Granting of usage rights Client consultation Mediation activities Reimbursement of expenses 177 9 13 13.1 13.2 13.3 13.4 13.5 13.6 13.7 Calculating your fees The range of fee-based services The design fee The usage fee The consultation fee Your commission for mediation services Reimbursement of expenses The special case pitch fee 187 14 14.1 14.2 14.3 Terms and conditions at your service What are “Terms and conditions”? Terms and conditions for contracts of sale The design contract 199 17.16 Assignability 17.17 Waiver 17.18 Severability 17.19 Integration 18 18.1 18.2 18.3 18.4 The future of intellectual property rights An internationally harmonized legal system A uniform IP right for all forms of intellectual property Protecting solely against commercial usage Employment of modern information technologies 235 Interviews 15 15.1 15.2 15.3 15.4 Liability and claims Avoiding liability – an example Contractual obligations Liability for design Typical liability risks for designers 16 International business transactions 16.1 The basics 16.2 Defining the international jurisdiction and applicable law in your contract 16.3 Is arbitration the solution? 17 Anatomy of a design contract 17.1 Purpose 17.2 License 17.3 Term 17.4 Compensation 17.5 Record inspection and audit 17.6 Warranties, acknowledgements and obligations 17.7 Samples 17.8 Copyright 17.9 Termination 17.10 Post-Termination rights 17.11 Infringements 17.12 Indemnity 17.13 Notices 17.14 Jurisdictions and disputes 17.15 Agreement binding on successors 10 207 215 Introduction Interviewer Anja Engelke Alexandra Fischer-Roehler, Johanna Kühl Karsten Henze Fons Hickmann Arik Levy Eckart Maise Justus Oehler Sabine Zentek 243 245 249 251 253 255 257 259 261 Appendix 219 Acknowledgments Authors’ biographies International Survey Argentina Australia Brazil Canada China Denmark EU France EU Germany EU Great Britain EU India Israel Italy EU Japan Kenya 267 269 271 272 274 276 278 280 282 284 286 288 290 292 294 296 298 11 12 Korea Latvia EU Russia South Africa Spain EU Sweden EU Switzerland Turkey USA Glossary of Legal Terms Addresses Literature Index 300 302 304 306 308 310 312 314 316 319 325 329 333 An easy-to-understand guide for designers on the legal topics that deeply affect their everyday professional activities, “Become a Successful Designer” provides designers with ways to protect and handle their intellectual property rights. Focus groups are all kinds of designers in the product, furniture, interior, fashion, textile, communications, graphics, and computational design areas. The authors explain the legal framework and the options for action from a completely new point of view. The law and its effects on the individual designer are described in the context of designers’ everyday practice. Here, the legal aspects of design do not appear in incomprehensible legalese but are rather shown as a strategic instrument for designers which can be fun to handle. Special attention is paid to the subject of policy issues and developments on an international level – matters which are increasingly relevant with the globalization of design. Designers, entrepreneurs and lawyers further illuminate these topics in inter- Joachim Kobuss Alexander Bretz Arian Hassani views. Lists of basic conditions to include in contracts, extensive checklists and an overview of the intellectual property rights in 23 countries complete the content. Layout design by Erik Spiekermann, illustrated by Liv Andrea Mosdøl. The Authors: Joachim Kobuss works as a businesscoach and scout and is owner of the DesignersBusiness® trademark. He advises designers from all fields on entrepreneurial development, and guides them in the process of becoming self-employed. Alexander Bretz is a Berlin-based lawyer and lecturer specializing in consulting to fashion and design businesses. He currently teaches Fashion Management at the Mediadesign University for Applied Sciences, Berlin. Arian Hassani is an American national, born in Tehran, raised in Germany and based in Paris. She earned her Master’s degree in International Development from the Harvard Kennedy School of Government. Joachim Kobuss · Alexander Bretz · Arian Hassani BECOME A SUCCESSFUL DESIGNER DESIGN RIGHTS www.birkhauser.com BECOME A SUCCESSFUL DESIGNER PROTECT AND MANAGE YOUR DESIGN RIGHTS INTERNATIONALLY
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