Publication
Problems of industrial design protection in Mozambique: Present law and reform endeavors in light of international protection

Cumbi, H.
February 2012

Abstract

This paper reviews the different provisions of protection of industrial design, the role and the importance of legal protection and economic value with reference to international, regional and national protection. This will be done by comparison among the provisions mentioned above with critical analysing of the provision of the Mozambican Industrial Property Code due the problem of industrial design protection which is the overlapping of designs privative (registered or not registered) with tri-dimensional trademark protection, unfair competition and passing off with copyright and sometimes with patents. And finally the proposal reform in light of international provision and the importance in acting the Hague System.

This difficulty of definition explains in part, the complexity faced by legislators in classifying designs protection. The ambiguity of ‘design’ resulting in overlap with other intellectual property laws. The European Union legislators have determined that the more modern concept of design, espoused by current EU design laws, means any aspect of a product which promotes the marketability of that product. However, within the European Union, the adoption of a sui generis design law for the protection of design leaves unanswered the adjacent anomaly posed by possibility of protection under other IPRs, especially copyright law.

This problem is not alleviated by the ambivalent attitude of TRIPS to designs.

TRIPS simultaneously adopt both the Paris and Berne positions and oblige Members to provide for a minimum standard of protection without specifying the nature of protection. In relation of texture design, however, Members must protect textile design either through design law or through copyright law.

Conversely, where Member’s interests lie in protecting the domestic design industry from domestic and international piracy, it should be noted that the two provisions on designs in the Agreement do not offer much in terms of mandatory rules. Thus, this expands on broad definition questions and comparative legal approaches to industrial designs.

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