Israel joins Hague Convention for Industrial Designs

For the first 70 years since the establishment of the State of Israel, the registration and protection of designs in Israel was governed by laws inherited from the British Mandate. Some of these were obsolete. For example, only local novelty was required, although this has been interpreted by Commissioner Circular to consider Internet publication accessible from Israel as published in Israel.

Caffe HagOn July 26, 2017 Israel’s Parliament, the Knesset, approved a proposed Israel Design Law in its second and third reading, that came into force on July 26, 2018.

With the new Law, the maximum protection for designs was increased from 15 years to 25 years and it paved the way for Israel to ratify the Hague Convention, smoothing the process for Israeli designers to obtain international design protection and for foreign products to be protected in Israel.

The Hague System for the International Registration of Industrial Designs provides a practical business solution for registering up to 100 designs in 70 contracting parties covering 88 countries, through the filing of one single international application.

In a legal sense, an industrial design constitutes the ornamental or aesthetic aspect of an article. An industrial design may consist of three dimensional features, such as the shape of an article, or two dimensional features, such as patterns, lines or color.

Similar to the Madrid System for trademark registration, one can centrally file a single design application and selection the countries where it will be registered

Israel has now ratified the Hague System which will come into effect on 3 January 2019.

COMMENT

Design rights started in the United Kingdom in 1787 with the Designing and Printing of Linen Act and have expanded from there.

The passing of the Design Law in 2017 replaced the old ordinance dating back to the British Mandate and paved the way for this welcome development.

Absolute world-wide novelty is now required to register a design in Israel. However, variant designs may be registered to the same applicant.

In a development that was welcomed by formalists such as myself, the A.Sh.I.R. case-law has been overturned and one can no longer obtain damages for design infringement under the Law of Unjust Enrichment.

Although joining Hague was welcome, in my experience, it has become increasingly difficult to register industrial designs in Israel, as there is substantive examination and the Examiners appear to be looking for something akin to an ‘inventive step’. In other words, they are looking for a positive contribution to the design world rather than a mere difference from the prior art. Israel design Examiners can and do cobble together different publications to show that a new design lacks novelty and seem to be looking for aesthetic innovation. In contrast, several significant jurisdictions such as the European Union, simply check the figures of a design application for consistency and for formalities.

With the Madrid Protocol, there is something called central attack. If the Hague Convention for Industrial Designs has something similar, this could be detrimental to Israeli companies wanting to use the system to protect objects of mass-produced manufacture that are not likely to win awards for innovative design.

Still, design protection is normally significantly cheaper to obtain than patent protection, and a European registered design is extraordinarily good value for money. Registered designs are usually easier to enforce a design than a patent and so where appropriate, registering designs should be considered as part of an IP portfolio.



Categories: appeal, Class Action, design, designs, Israel IP, Israel Related, עיצוב, קניין רוחני, קנין רוחני

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