(1) Requirements for Registrability of Design Right
To obtain a design right, an application is required. Additionally, following requirement is also required.
1. The design can be utilized industrially
One of the purposes of the design act is to encourage creation of designs, and thereby to contribute to the development of industry. Therefore, genuine/fine art objects created individually are not intended to be protected by this act. Namely, the design is required to be able to be mass-produced by the industrial production method.
2. The design should be without precedent
You can’t obtain the design right if you apply the design which has already
existed in the world. In other words, a creator of a new design can obtain
the design right of the design.
What is the meaning of “having a novelty”? The examples of designs that lack novelty are provided below.
(1) Identical to designs that were publicly known in Japan or a foreign country
(2) Identical to designs that were described in a distributed publication, or designs that were
made publicly available through an internet in Japan or a foreign country
(3) Designs similar to those prescribed (1) or (2).
For example, (1) means a design which is known because it has been sold or exhibited in an exhibition. (2) means a design which is described in a magazine or a gazette. AS for (3), when their articles or forms are not similar, these designs are deemed to be not similar. For example, even though a concrete block and a chocolate have just the same forms, they are not similar because the articles are completely different.
Moreover, even though the designs were publicly known, when an application of the design is filed within 6 months from the date on which the design has become publicly known, the design right of the design may exceptionally be obtained.
3. The design should be innovative
It is difficult to evaluate whether the created design is innovative or not. For example, an article which has a wellknown form with little modification might be assumed that the creation is easy. More specifically, a paper weight only mimicking the form of a fruit is not innovative.
4. The application of the design should be earlier application.
An earlier application means the application for design registration which is precedent applied first. Even though two persons create the same design in different places, the person who files the application first can obtain the design right. The first-to-file system is adopted for a design right as well in Japan Patent Office.
5. Other requirements
In addition, there are several further requirements, for example, that the design shall not offend public order and morals.