(photo credit: BLOOMBERG)
A recent court ruling draws attention to a relatively unfamiliar area of
intellectual property: industrial-design rights. This week a European Community
court issued a preliminary injunction against Samsung importing its Galaxy
tablet computer into the area within the court’s jurisdiction because the design
closely copies that of Apple’s iPad. The ruling has nothing to do with patent
infringement but only with the actual appearance of the
Intellectual property refers to the granting of a legal monopoly
on the use of ideas.
It would seem like we should allow the free
proliferation of great ideas since they cost nothing to use. But the problem is
that without protection, people will be much less inclined to invest in creating
great ideas. Inventors invest effort in new ways of doing things with the
knowledge that they can make money selling the product or licensing the method;
artists invest effort in creating books and symphonies in the knowledge that
sale or performance is forbidden without their permission; merchants invest in
cultivating a sterling reputation knowing that competitors are forbidden from
copying their trademarks.
Naturally, great care is needed in legislating
these rights. We don’t want to protect ideas that would have been created even
without the protection; we don’t want to give all of the benefit of the idea to
the creator and none to the public; certainly we don’t want to stifle innovation
by using intellectual property as a way of preventing competitors from making
innovative and new competing products using alternative
Note that a trade mark is a little different than patents
and copyrights. The trade mark itself does not cost much to create and doesn’t
confer any inherent benefit on the copier. It serves to identify the product and
protect it against counterfeiters.
Design rights are somewhere in
To some extent, they serve like copyrights, preventing a
competitor from making a knock-off that feeds off the reputation of the
original. But they also serve to encourage manufacturers to invest in making
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It could be that either of these alone could not
justify design protection. Products can be identified in many ways besides their
design. Unlike inventions and creations, designs usually do not cost a fortune
and they are easy to invent around.
But the combination of qualities
makes design a good candidate for protection.
Apple puts more emphasis on
design, compared with technological innovation – more than perhaps any other
technology company. So it is natural that it should be jealous to protect its
designs. But a lot of iPad design is pretty standard, so there is reason to
doubt if this preliminary injunction will stand up in the court battle that is
now shaping email@example.com Asher Meir is research director
at the Business Ethics Center of Jerusalem, an independent institute in the
Jerusalem College of Technology (Machon Lev).
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