Design Act Article 26: Relationship with Others' Registered Designs, etc.
This article corresponds to Article 72 of the Patent Act. It is provided to adjust the relationship between rights when a design right utilizes or conflicts with another person's patent right, utility model right, or design right, based on the principle of first-to-file priority.Since the effect of a design right extends to the scope of similarity of the registered design, conflicts within the scope of similarity are also possible.
There are no provisions regarding the relationship with trademark rights or copyrights.
1. Utilization
"Utilization" refers to a relationship where (i) the content of another person's right is incorporated entirely into one's own right, and (ii) implementing one's own right results in the implementation of the entirety of the other person's right, but the reverse is not true.
A concrete example of "utilization" is a design right for a bicycle (finished product) applied for later, relative to a design right for a bicycle handlebar (part) applied for earlier.
2. Conflict
"Conflict" refers to a relationship where multiple rights overlap with each other, and implementing either one results in the implementation of the other person's right.
A concrete example of "conflict" is a design right for a tire applied for later, relative to a patent right for a tire tread pattern applied for earlier. In this case, the tire as a concrete product is the same. However, the patent right is granted for reducing wear or preventing slipping, while the design right is granted for creating an aesthetic appearance.
・Design Act Article 26
(Relationship with Others' Registered Designs, etc.)
Article 26 (1) A holder of a design right, exclusive license, or non-exclusive license may not work the registered design as a business if the registered design utilizes another person's registered design, or a design similar thereto, a patented invention, or a registered utility model for which an application was filed prior to the filing date of the design registration application, or if the part of the design right relating to the registered design conflicts with another person's patent right, utility model right, or trademark right for which an application was filed prior to the filing date of the design registration application, or with another person's copyright that arose prior to the filing date of the design registration application.
(2) A holder of a design right, exclusive license, or non-exclusive license may not work a design similar to the registered design as a business if the design similar to the registered design utilizes another person's registered design, or a design similar thereto, a patented invention, or a registered utility model for which an application was filed prior to the filing date of the design registration application, or if the part of the design right relating to the design similar to the registered design conflicts with another person's design right, patent right, utility model right, or trademark right for which an application was filed prior to the filing date of the design registration application, or with another person's copyright that arose prior to the filing date of the design registration application.
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