What should a Jewelry Designer know about Design Law today?
by Arlo Canella
Working as a lawyer and providing assistance in the jewelry design sector, I must answer a series of recurring questions on a daily basis. Well, according to a survey carried out by IlSole24ore-Statista, our law firm - Canella & Camaiora - was confirmed as one of the best Italian law firms for the Intellectual Property area of activity for both 2020 and 2021. In this short essay, I will provide an answer to the following questions:
1.- What makes a real difference in jewelry design?
2.- Can you copy a jewelry design?
3.- Can a jewelry design be copyrighted?
4.- Can jewelry design be patented?
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1.- What makes a real difference in jewelry design?
As someone who works with successful designers, I firmly believe that the best outcomes are achieved through the mystical merger of at least three factors: craftsmanship, luxury and individual creativity.
Especially the latter is often the crucial factor. Projects with an innovative, highly coherent and, above all, distinctive artistic vision are more likely to succeed in gaining public attention.
Through the advice of an experienced design law attorney, better outcomes can be achieved because:
- projects are properly valued and protected;
- being accused of copying others' creations is avoided;
- significant compensation can be obtained when your work is copied.
2.- Can you copy a jewelry design?
The legal regulation of unfair competition prohibits, among other things, the slavish imitation of the products and distinctive signs of competitors. Furthermore, there are specific legislative limits to the creative freedom of designers. These limits are constituted by the existence of the institutions of intellectual property: trademarks, patents, models, applied art, unfair competition.
Moreover, to effectively address the Design Law, understanding the legal discipline is not sufficient. The jewelry industry arose in Mesopotamia nearly three thousand years ago and therefore a massive layering of shapes, styles and materials is involved.
An experienced design law attorney should at the very least be comfortable with the "basic metrics" which govern the aesthetics of this peculiar field.
As a matter of fact, Design Law is indeed that rather delicate area of intellectual property which, besides requiring a deep knowledge of the pertinent discipline, also demands a degree of familiarity with design itself.
3.- Can a jewelry design be copyrighted?
Copyright protects any creation of the human intellect as long as it is new and sufficiently defined. Nonetheless, while it is true that copyright originates free of charge and "automatically" upon the creation of the works, it is imperative to emphasise that this sector has its own peculiar characteristics.
As mentioned above, the overcrowding of shapes in this sector entails a certain severity of approach for judges who have to decide whether to grant protection. On top of that, in some countries, including Italy, the legal protection of industrial design as a work protected by copyright is conditional on the existence of a further requirement, the so-called "artistic value" (see art. 2, no. 10 of L. 633/1941). In the absence of artistic value, there can be no protection.
Therefore, rather than relying on copyright, authors who aim at gaining economic profit from the mass production of their original creations prefer to rely on the more effective registration of the model at the trademark and patent offices.
This is due to the fact that it is cumbersome to prove the authorship of a specific design as well as the date of its creation in court. It would therefore be challenging to apply for a custom seizure, for instance, in absence of a proper certificate of registration of the original item.
To sum up, if you want to obtain the exclusive right to exploit an idea or a jewelry project, relying on copyright is not certainly the easiest or the most appropriate approach.
Should anyone wish to learn more, I periodically explain how copyright protection applies to the style and fashion industry, including the strategies adopted by fashion houses, in my live webinar "Corso essenziale sul Diritto della Moda". The course-event is held in Italian and is free of charge. Registration is already open for the 10 March 2022 edition
4.- Can jewelry design be patented?
When a jewelry or costume jewelry product's value is provided by its innovative concept to a greater extent than by the value of the metals or gemstones it embeds, it is imperative to resort to design registration.
The legal protection is secured by filing with the relevant offices - choosing among national, EU or international filing level - and generally lasts for 5 years, extendable for another 5 years up to a maximum of 25 years.
Since registration provides a legal presumption as to the validity of the title and its ownership, our clients have increasingly learned to exploit the advantages of registration.
It is also worth remembering that registration not only grants protection in the event of plagiarism, but also allows the design to be clearly identified as an intangible property in case of contractual management and/or its economic assessment.
In order to give everyone the chance to consider defending an original design through formal legal registration, our firm has created a digital tool. This interactive tool, by answering a few simple questions, allows you to obtain an immediate quotation based on your requirements and the peculiarities of the project. This tool is currently accessible from the Italian version of our Website.
Arlo Canella, Attorney at Law, Intellectual Property Law Expert
