The distinctiveness of a design is one of the important elements regarding the protection of a design by registration. This concept, which is encountered often in practice and legal disputes, can be defined as the characteristic that makes the appearance of a product different from other products, in other words that enables it to be distinguished. The protection of a design is always dependent on the condition of novelty other than the element of distinctiveness, but the fact that the design has just the element of novelty is not considered sufficient for the protection of the design.
THE ROLE OF THE INFORMED USER IN THE EVALUATION OF DISTINCTIVENESS
Within the scope of the Industrial Property Law Numbered 6769, the evaluation criteria regarding whether a design has a distinctiveness characteristic is subjected to the general impression left on an informed user. An informed user can be defined as a person who is more knowledgeable about an existing design than an ordinary user, but does not have as much technical knowledge as an expert. The important matter here is that the informed user can notice details that a normal user can overlook. For example, in evaluating the distinctiveness of a mobile phone design, the informed user may be the phone repairman. According to it, the impression left by the design in the eyes of the informed user is before the application date or priority date for a registered design, before the date it is first presented to the public concerning an unregistered design; If the general impression created by any design presented to the public on the same informed user is different, it can be considered that the relevant design has a distinctiveness characteristic.
SCOPE OF DISTINCTIVENESS CHARACTERISTIC
In the evaluation of distinctiveness, the elements in the appearance of the design such as the shape, the color codes it contains, lines, form, texture, the flexibility of the material, etc. are considered. In other words, distinguishability from its counterparts are considered and in case of differences in the above-mentioned matters, it can be possible to protect the relevant design. However, regarding the function of a product, if it is required to be designed in certain manners and does not give freedom of choice to another person, the relevant design will not be considered to have a distinctiveness characteristic. Therefore, the protection of the design will not be discussed. Because, the protection of the design does not purport the protection of the product itself, it purports the protection of the design of the product. The purpose of the lawmaker herein is to prevent the monopolization of a design by being specific to a particular person in the market area where it is presented to the public. However, although in absence of freedom of choice while developing design, the protection of the design will not be discussed, some technical obligations concerning relevant design will not prevent the protection of the design. In the event of a possible conflict, the above-mentioned technical requirements will not be considered in the distinctiveness characteristic comparison. In the evaluation to be carried out regarding such technical requirements, the degree of freedom of choice of a designer has while developing the relevant design will be considered. In other words, in order for a design to be recognized as having a distinctiveness characteristic, it is necessary to have definite differences while comparing with other designs, other than the requirements that its appearance must include within the scope of certain standards.
Turkish Patent Institute does not review by itself during the registration application whether the designs have a distinctiveness characteristic. As a result of the objections made by third parties, the evaluation concerning distinctiveness characteristic of the design will be made by the Re-examination and Evaluation Department.In consequence of the evaluation made regarding the objections of the third parties, the opinion that there is no impediment in the registration of the design will not prevent third parties right to bring an action concerning the invalidity of the registration.
In terms of distinctiveness characteristic of a design, the fact that the overall impression created by the design on an informed user differs from previous designs is a requirement for the protection of the relevant design. While determining whether the designs satisfy such conditions makes it necessary to hold a detailed examination in some cases. Therefore, in the event of an arising dispute, it may become a current issue to determine the existence of the conditions regarding the protection of the design with the examination to be made via the expert.
Elif Göktepeliler, Attorney At Law