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The below is based on the Benelux Treaty on Intellectual Property (the “BTIP”) and in general on the European Community design regulation (the “Regulation”) Assessment based on national laws may lead to a different result. If I understand your question correctly and may rephrase: is the shape of the 3 dimensional product, embodied in the 2 dimensional drawing, eligible for protection under the copyright act or the designs act? First of all I am going to assume that the drawing – irrespective of whether it could be protected under designs or copyright – fulfils the requirements for protection under each regime. So we are not going to worry about novelty, individual character (as required under designs law) or novelty and distinctive mark of the maker (as generally required under copyright law). Although the BTIP makes mentions drawings (2D) and Models (3D) separately, while the Regulation does not, the BTIP does not define drawings and models separately. There is considerable overlap in the definitions used in the BTIP with those in the Regulation. According to the BTIP a drawing or model is the appearance of a product or part thereof (the Regulation refers to both collectively as “designs”). The appearance of a product results from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation. A product means any industrial or handicraft item, including inter alia parts intended to be assembled into a complex product, packaging, get-up, graphic symbols and typographic typeface, but excluding computer programs. From the definition of “product” it follows that a drawing, as in the case at hand, might not fulfill the requirement of “industrial or handicraft item”. Considering this in conjunction with case law, where the term “drawing” has been considered to refer to 2 dimensional patterns (e.g. on textiles, wallpaper, tiles, etc.), leads to the conclusion that the drawing in our case is not eligible for protection under design law. The 2 dimensional drawing would be protected under copyright law if it fulfills the criteria for copyright protection.

09/01/2010 7:24:56 AM EDT