La vita di un disegno o un modello

 


The owner of the model or design is responsible for discovering any copies or imitations and of taking action at the appropriate offices, taking the most suitable measures for the situation.

The letter of formal notice - When a violation of rights is detected, first of all send a letter of formal notice to the alleged counterfeiter, informing him/her of the possibility of a conflict between the design or model under protection and the one used by him/her. This procedure is effective especially in the event of unintentional violation, as the person who was unwillingly responsible for it almost always interrupts this illegitimate activity or agrees to negotiate a licence contract.

The precautionary injunction  - If the violation is deemed intentional and the place where it was exercised is known, the judicial authorities or the police may obtain a warrant to search the premises of the company or of the person suspected of the violation, proceeding thereafter with seizure of the counterfeited goods. For example, swiftly intervening during a trade fair event determines unequivocal proof ascertaining the counterfeiting, thus facilitating subsequent legal action.

The legal proceedings - Often, however, the question of whether or not a design or model has been violated can be very complex, and any final decision can only be taken after the procedural phase, during which the judge summons witnesses, questions the parties, provides for technical consultancy and acquires all documentation useful to the decision.
If, at the end of the proceedings, the judge certifies the violation, the owner of the design or model can obtain a verdict of prohibition to manufacture or market the result of the violation of the right; or that the objects produced have been assigned as property; or again, that reasonable compensation for the incurred damages (loss of earnings, moral damages, etc.) has been assured.

Arbitration and mediation - As an alternative to legal proceedings, it is possible to make use of a system of alternative dispute resolution, such as arbitration and mediation, in order to avoid lengthy and costly trials. Arbitration and mediation clauses are often included in contracts between companies, like those foreseeing a concession agreement, specifically in order to quickly settle the disputes.
Generally, arbitration has the advantage of being a less formal procedure and shorter than ordinary proceedings before the courts, and an arbitration ruling can be enforced more easily on an international level. However, an advantage of mediation is that the parties maintain control of the mediation procedure. Such a characteristic can be used to maintain good business relations with the other company, with which it could, perhaps, be useful to collaborate in the future.

Control procedure - Protection at customs – In Italy, the owner of a design or model can prevent the import of goods suspected of counterfeiting on the basis of Reg. EC no.1383/2003, which orovides for the detention of suspected goods at EC borders.
To start the control procedure of goods bearing a right (valid for one year and renewable for successive one year periods), it is necessary to file an application to the Agenzia delle Dogane (Customs Office) in Rome, via Carucci 71, indicating which designs or models the owner wants to supervise (attaching copies of the relative certificates of registration and filling out a "Declaration of responsibility") and providing as much information about the original product as possible for customs officials to be able to recognise the genuine product from the counterfeit.
If the Customs official suspects that certain goods are counterfeited, he/she must contact the owner of the supervised design or model, who has ten working days to confirm whether or not they are counterfeited goods. If affirmative, the Customs official shall seize the goods and criminal proceedings initiate automatically.
The owner of the design or model is entitled to be informed regarding the origin and destination of the counterfeited goods and can also initiate civil action, if appropriate, towards the final recipient.
For information and forms regarding this procedure, consult the Agenzia delle Dogane website www.agenziadogane.it .

Other legal means of protection – In Italy, the protection of certain types of designs and models is also allowed through copyright, regulations on trademarks and unfair competition.

  • Copyright - Legislation protects certain types of designs and models even through copyright, using both protective modes. However, the two forms of protection have their own characteristics:

- Registration. The industrial property code establishes that in order to obtain the exclusive rights of a design or model, the registration certificate issued by the IPTO must be acquired, as a useful instrument to prove one's rights in case of disputes. The copyright on work that is considered original exists regardless of any type of formality; in Italy, however, it is possible to file work as original (at the Ministero per i Beni e le Attività Culturali, Servizio VI Diritto d’Autore e Vigilanza SIAE - Ministry of Heritage and Cultural Activity, Service VI Copyright and Vigilance SIAE). Even though it is not registered, it grants a certain ownership of the right.
- Duration. The protection offered by the design and model lasts 25 years at most. The registration procedure of the design or model could take time and be inadequate for products linked to temporary modes; copyright is immediate and lasts up until 70 years after the death of the author.
- Area of protection. The right granted by the registration of a design or model is absolute, meaning that it is valid regardless of the intentionality of the creation of a copy of the design or model; according to copyright standards, on the other hand, violation only exists in case of malicious reproduction of the work protected by the right and this could be harder to prove in case of a dispute.
- Types of products. In Italy, not all types of designs and models can be protected by copyright but only those with a creative nature and artistic value. In fact, this type of protection is only attributed to designs or models considered to be works of art. This distinction is not always easy to identify.
- Costs. Copyright protection does not have direct costs, as most countries acknowledge it without requiring the observance of formal proceedings.
In conclusion, the protection offered by the registration of the design or model is stronger than that guaranteed by copyright as it protects even against unintentional violations and provides a certification of registration attesting ownership of the right. However, this type of protection requires greater economic and administrative effort and is more time limited.

Unfair competition - In Italy, like in many countries, designs and models are protected by unfair competition standards. Therefore, a design or model can be protected against acts of unfair competition such as strict imitation, actions subject to  confusing consumers and other forms of exploitation of another's reputation. Nonetheless, the protection offered by competition standards is more limited than what is offered by standards on the protection of designs and models and their violation is hard to prove.

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