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Novelty Search In Designs And A Case Study

One of the revolutionary changes introduced by the new Industrial Property Code No. 6769 is that the novelty search for design applications can be now carried out ex officio by TURKPATENT, and applicants are granted the right to appeal to the decision.

A design, in the most classical sense, is defined as "the appearance of the whole or a part of a product resulting from the features of the line, contour, color, shape, material or texture of the product itself or its ornamentation". Designs can benefit from the right of registration and the protection granted by this right, as long as they are new and have distinctive character. Novelty means that a product subject to a design should not be released to the public one year prior to the date of application. In other words, designs which have less than one year between their application date and release date are considered new and included in the scope of protection. No search could be conducted by TURKPATENT in design applications during the period of old legislation in order to determine whether a product does have novelty feature or not, and designs were published directly, which consequently did cause suspension periods for objections to be long, and allow respective people to forestall the registration by the reason of lacking novelty feature and distinctive character by letting them see the design.

The fact that the search for determining whether a product has the "novelty" feature or not, which is the basic protection requirement for designs, can be carried out during the application phase of the design will prevent both repetitive registrations and monopolization of a single person on the designs that have become anonymous, namely public, as well as it will prevent the possibility of unfair interventions that this person will make to third party uses. Thus, emergence of designs that are actually novel and have distinctive character will be possible, and these designs will be protected more effectively.

This search procedure, which is done ex officio by TURKPATENT, is conducted in the form of image search on search engines like Google, Yandex and so on. If a design which is identical to another one pending registration, is detected subsequent to the search conducted, then the pending registration is refused. The decision regarding the rejection of the registration request can be appealed by the applicant.

In the light of this information, let's explain the issue with a case study;

The image search made on Google search engine indicated in the novelty search conducted by TURKPATENT for LED LAMP designs which has been applied for registration on May 29, 2018 that said designs were actually identical to designs included in a web site. Accordingly, the application for said designs was considered as not new and it was resolved to be refused due to the fact that the publication date (May 28, 2018) of LED LAMP images included in the web site on which the image search was conducted, was before the application date (May 29, 2018).

The decision was appealed by the applicant. The 2017 catalog, which included the LED LAMP images subject to the application, with the invoice, belonged to the applicant, dated June 04, 2017 was included in the appendix of the petition of the objection.

The applicant proved with this catalog that the LED LAMP designs subject to the registration application have the right of priority and that they have the feature of novelty since they have applied within one year of being offered to the public. After reconsidering the objection together with the evidence, it was understood that the design subject to the objection was first offered to the public, so TURKPATENT Re-examination and Re-evaluation Board accepted the objection and decided to proceed with the registration process of the relevant designs.

This precedent decision emphasized that applicants should register their products subject to design within one year after releasing to the public, otherwise they should know that the feature of being new which is the basic protection requisite of the design disappears.

Similarity searches for design applications which can be conducted ex officio by TURKPATENT and the applicant's objection right to the decisions taken by TURKPATENT ushered in a new era in terms of registration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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