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ASEAN Common Guidelines for the Substantive Examination Of COMMON GUIDELINES FOR THE SUBSTANTIVE EXAMINATION OF INDUSTRIAL DESIGNS EXAMINATION COMMON GUIDELINES FOR THE SUBSTANTIVE COMMON GUIDELINES FOR THE SUBSTANTIVE EXAMINATION OF INDUSTRIAL DESIGNS ASEAN: A Community of Opportunities for All @ASEAN ASEAN @ASEAN www.asean.org ASEAN COMMON GUIDELINES FOR THE SUBSTANTIVE EXAMINATION OF INDUSTRIAL DESIGNS 1 ASEAN COMMON GUIDELINES FOR THE SUBSTANTIVE EXAMINATION OF INDUSTRIAL DESIGNS The ASEAN Secretariat Jakarta 1 3 The Association of Southeast Asian Nations (ASEAN) was established on 8 August 1967. The Member States of the Association are Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, PART PART 1 Thailand and Viet Nam. The ASEAN Secretariat is based in Jakarta, Indonesia. For inquiries, contact: The ASEAN Secretariat Community Relations Division (CRD) ABSOLUTE GROUNDS FOR THE REFUSAL 70A Jalan Sisingamangaraja Jakarta 12110 OF REGISTRATION OF TRADEMARKS Indonesia Phone : (62 21) 724-3372, 726-2991 Fax : (62 21) 739-8234, 724-3504 E-mail : [email protected] Catalogue-in-Publication Data Common Guidelines for the Substantive Examination of Industrial Designs Jakarta: ASEAN Secretariat, November 2018 341.758 1. ASEAN – Intellectual Property Rights – Industrial Designs 2. Standard – Examination – Registration ISBN 978-602-5798-27-6 ASEAN: A Community of Opportunities for All The text of this publication may be freely quoted or reprinted, provided proper acknowledgement is given and a copy containing the reprinted material is sent to the Public Outreach and Civil Society Division of the ASEAN Secretariat, Jakarta General information on ASEAN appears online at the ASEAN Website: www.asean.org Copyright Association of Southeast Asian Nations (ASEAN) 2018. All rights reserved. 3 PART PART 1 1 ABSOLUTE GROUNDS FOR THE REFUSAL OF REGISTRATION OF TRADEMARKS GROUNDS FOR REFUSAL OR INVALIDATION OF REGISTRATION COMMON GUIDELINES FOR THE SUBSTANTIVE EXAMINATION OF INDUSTRIAL DESIGNS CONTENTS PREAMBLE 5 Background 5 Purpose of the Common Guidelines 8 ABBREVIATIONS USED IN THE COMMON GUIDELINES 9 ASEAN Member States (Country Codes) 9 Other Abbreviations 9 References 10 GROUNDS FOR REFUSAL OR INVALIDATION OF REGISTRATION 11 INTRODUCTION 11 1 Definition of ‘industrial design’ 13 1.1 Definition under national law 13 1.2 Elements of the definition 15 1.2.1 Features of appearance 15 1.2.1.1 Words, letters and other characters 15 1.2.1.2 Colours 16 1.2.1.3 Music and sounds 17 1.2.1.4 Photographs 17 1.2.1.5 Architectural plans, blueprints, construction plans 17 1.2.1.6 Graphs, charts, maps and teaching materials 18 1.2.1.7 Computer screen displays, screen icons 18 1.2.2 Embodiment in a product 19 1.2.2.1 Concepts, principles 19 1.2.2.2 Methods, processes 20 1.2.2.3 Computer programmes and layout-designs 20 1.2.2.4 Powders and fluids 20 1.2.2.5 Parts of products 21 1.2.3 Products of industry or handicraft 23 1.2.3.1 Industrial application 23 1.2.3.2 Living and natural products 25 1.2.3.3 Works of art 26 2 Novelty 28 2.1 Definition of novelty 28 2.1.1 Public of reference 28 2 PART 1. GROUNDS FOR REFUSAL OR INVALIDATION OF REGISTRATION 1 COMMON GUIDELINES FOR THE SUBSTANTIVE EXAMINATION OF INDUSTRIAL DESIGNS 2.1.2 Relevant date for novelty purposes 29 8 Representation of the design 68 2.1.2.1 Priority 29 8.1 General requirements 68 2.1.2.2 Grace period 30 8.2 Form of representation 68 2.1.3 Possible sources of disclosure 31 8.2.1 Background of the representation 69 2.1.3.1 Commercial distribution and use in trade 31 8.2.2 Transparency in the design representation 69 2.1.3.2 General publications 32 8.2.3 Quality of the representations 70 2.1.3.3 Official publications 32 8.3 Number and consistency of views 70 2.1.3.4 Disclosure on the internet 33 8.4 Different appearances of a product during use 72 2.1.3.5 Disclosure at an exhibition 33 8.5 Complex products, sets of articles and variations 73 2.2 Assessing novelty 35 8.5.1 Complex products 73 2.2.1 Identity of designs 35 8.5.2 Sets of articles 75 2.2.2 Overall impression 37 8.5.3 Variations of an industrial design 76 2.2.3 Combinations of earlier designs 39 8.6 Representation of a design for a part of a product 77 2.2.4 Freedom of design 40 8.6.1 Representation of a claimed part 77 8.6.2 Means of identification of a claimed part 78 8.6.2.1 Dotted lines and solid lines 78 3 Visibility 42 8.6.2.2 Perimetric boundaries 79 3.1 Principle 42 8.6.2.3 Shading and blurring 79 3.2 Complex products and different positions of a product 42 8.6.2.4 Separations and cuts 80 8.7 Description of views and explanatory text 81 8.8 Representation of repeating surface pattern designs 81 4 Technical or functional features 45 8.9 Representation of designs with colours 82 4.1 Rationale for refusal 45 4.2 Assessment of functionality 47 4.3 Functionality ban prevails over aesthetic quality 49 9 Product indication 83 4.4 Spare parts and interconnections 50 9.1 General matters 83 4.5 Combination of functional and aesthetic features 51 9.2 Classification of products that embody industrial designs 83 9.2.1 Use of the International Classification 83 9.2.2 Correction of product indication 84 5 Conflict with prior rights 55 9.2.3 Objection to product indication 85 5.1 Prior rights in registered designs 55 5.2 Prior rights in distinctive signs 55 5.3 Prior rights in copyrighted works 58 10 Multiple application and unity of design 86 10.1 General aspects 86 10.2 Standard of unity of design 86 6 Public policy, public order and morality 59 6.1 General considerations 59 6.2 Particular issues 60 6.2.1 Nature of the design itself 60 6.2.2 Nature of the product on which the design is applied 61 6.2.3 Aesthetic considerations 62 7 Specific statutory prohibitions 63 7.1 Prohibitions provided by statute 63 7.2 State emblems and official signs 64 7.3 Representations of persons and dignitaries 66 3 4 2 PART 1. GROUNDS FOR REFUSAL OR INVALIDATION OF REGISTRATION COMMON GUIDELINES FOR THE SUBSTANTIVE EXAMINATION OF INDUSTRIAL DESIGNS 8 Representation of the design 68 8.1 General requirements 68 8.2 Form of representation 68 8.2.1 Background of the representation 69 8.2.2 Transparency in the design representation 69 8.2.3 Quality of the representations 70 8.3 Number and consistency of views 70 8.4 Different appearances of a product during use 72 8.5 Complex products, sets of articles and variations 73 8.5.1 Complex products 73 8.5.2 Sets of articles 75 8.5.3 Variations of an industrial design 76 8.6 Representation of a design for a part of a product 77 8.6.1 Representation of a claimed part 77 8.6.2 Means of identification of a claimed part 78 8.6.2.1 Dotted lines and solid lines 78 8.6.2.2 Perimetric boundaries 79 8.6.2.3 Shading and blurring 79 8.6.2.4 Separations and cuts 80 8.7 Description of views and explanatory text 81 8.8 Representation of repeating surface pattern designs 81 8.9 Representation of designs with colours 82 9 Product indication 83 9.1 General matters 83 9.2 Classification of products that embody industrial designs 83 9.2.1 Use of the International Classification 83 9.2.2 Correction of product indication 84 9.2.3 Objection to product indication 85 10 Multiple application and unity of design 86 10.1 General aspects 86 10.2 Standard of unity of design 86 4 PART 1. GROUNDS FOR REFUSAL OR INVALIDATION OF REGISTRATION 3 COMMON GUIDELINES FOR THE SUBSTANTIVE EXAMINATION OF INDUSTRIAL DESIGNS PREAMBLE Background These Common Guidelines for the Substantive Examination of Industrial Designs in the ASEAN Member States (hereinafter called “the Common Guidelines”) have been prepared in the context of the EU-ASEAN Project on the Protection of Intellectual Property Rights (ECAP III). That project was approved by the European Union and ASEAN in 2009 to support the objectives of the ASEAN Economic Community Blueprint, and the strategic goals as identified in the ASEAN IPR Action Plan 2011-2015. The overall objective of ECAP III Phase II is to further integrate ASEAN Member States into the global economy and world trading system to promote economic growth and reduce poverty in the region. The project’s specific objective is to enhance ASEAN regional integration and further upgrade and harmonise the systems for the creation, protection, administration and enforcement of intellectual property rights in the ASEAN region, in line with international intellectual property standards and best practices, and with the ASEAN Intellectual Property Rights Action Plan 2011-2015. The EU Office for Harmonization in the Internal Market (OHIM) was entrusted with the implementation of Phase II of ECAP III over the period 2013-2015. On 12 March 2015, in Bandar Seri Begawan, Brunei Darussalam, the ECAP Project Steering Committee (PSC) approved the project Annual Work Plan (AWP) for 2015. The PSC decided to include within that work plan the organisation of a key activity “aimed at enhancing the quality, consistency and transparency of the work undertaken by the ASEAN IP Offices with regard to the examination and registration of industrial designs”.
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