Design Act Article 60-12: Effects of International Publication, etc.
This article provides for the right to claim compensation regarding international applications for design registration.
Under the Japanese Design Act, a design (a design pertaining to an application or a registered design) is published afterthe registration of the establishment of a design right. Therefore, the possibility of one's design being imitated or plagiarized by a third party between the filing of the application and the registration of the establishment is considered low.
On the other hand, international applications for design registration are subject to international publication by the International Bureau prior to the granting of rights in each designated country. Consequently, there is a higher possibility that a third party will imitate or plagiarize the design pertaining to the application.
To address such issues, the Design Act includes provisions for international applications for design registration that follow the right to claim compensation under the Patent Act.
・Design Act Article 60-12
(Effects of International Publication, etc.)
Article 60-12 (1) An applicant for an international application for design registration may, when they have given a warning by presenting a document stating the design pertaining to the international application for design registration after the international publication, claim compensation against a person who has worked the design pertaining to the international application for design registration or a design similar thereto as a business after the warning and before the registration of the establishment of the design right, in an amount equivalent to the amount of money they would be entitled to receive for the working of the registered design or a design similar thereto if the design pertaining to the international application for design registration were a registered design. The same shall apply even if the warning is not given, against a person who has worked the design pertaining to the international application for design registration or a design similar thereto as a business before the registration of the establishment of the design right, knowing that the design is the design pertaining to the international application for design registration that has been internationally published.
(2) The provisions of Article 65, paragraphs (2) through (6) shall apply mutatis mutandis to the exercise of the right to claim under the preceding paragraph. In this case, the term "after the publication of the application" in paragraph (5) of the same Article shall be deemed to be replaced with "after the international publication," and the term "Article 101, Articles 104 through 104-3, Articles 105 through 105-2-11, Articles 105-4 through 105-7, and" in paragraph (6) of the same Article shall be deemed to be replaced with "Article 38 of the Design Act, Articles 104-2 through 105, 105-2-11, and 105-4 through 105-6 of the Patent Act as applied mutatis mutandis pursuant to Article 41 of the same Act, and the Patent Act as applied mutatis mutandis pursuant to Article 52 of the Design Act."
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