TAIWAN’S DESIGN PATENT, COPYRIGHT AND TRADEMARK LAWS
TRIBULATIONS OF A RUBBER DUCK
The debate around a fl oating work of art brings several aspects of Taiwanese IP law into focus, say Julia Liu and T.K. Lin.
“D
uck Explodes”. It’s probably not the headline expected this past New Year’s Eve by Dutch artist
Florentijn Hofman but this was indeed at the top of a series of domestic news reports when Hofman’s 18-metre high yellow rubber duck, on display in a northern Taiwan port, exploded just hours before it was expected to attract a large crowd to count down the new year.
From September 2013 to January 2014, it was estimated that nine million tourists in three Taiwanese cities, Kaohsiung, Taoyuan and Keelung, viewed the installation, known in Taiwan as Baby Yellow Duck (黃色小鴨). T at’s around 40 percent of the population of Taiwan and, given this frenzied interest, it was not surprising when domestic news stories broke that Hofman was dissatisfi ed with the Keelung display in particular, amid accusations of copyright infringement, and refused to attend any related activities, that attention would focus on Taiwan’s IP rights protection.
70 Design patents
T e Taiwan Patent Act (2013) defi nes the design of an article as its visual characteristics such as its shape, pattern, colour, or any combination thereof (ornamental), created as a whole or in part. As in most other jurisdictions, to qualify for a design patent, an article must meet ornamental standards, be new, be novel and be repeatable.
While Hofman’s rubber duck may meet Taiwan’s design patent criteria for being ornamental and repeatable, it would not pass the test of being new and novel as the toy version of the rubber duck is said to have been around since the 1800s and Hofman has been reported as saying that his inspiration for his enlarged version was Hong Kong-based toy maker Tolo Toys Ltd’s smaller version.
In 2013, the Taiwan Patent Act eff ectively broadened its design patent protection law to include “partial designs” and “designs for a set of articles”. Accordingly, one option for prospective design patent applicants such as Hofman may be to claim one characterised portion of a design,
World Intellectual Property Review Annual 2014
such as the head of the rubber duck. Additionally, since two or more articles belonging to the same class (Locarno Classifi cation) can be fi led for one design, an applicant may claim a pair of rubber ducks consisting of a male and female duck, which are sold or used together, as one design.
Design patents in Taiwan are subjected to an examination by the Taiwan Intellectual Property Offi ce (TIPO), which includes a prior-art search. T ey have a term of 12 years from the date they are fi led.
Copyright
While the probability of a design patent in Taiwan for Hofman’s rubber duck seems low, the chances of copyright protection are greater. In December 2013, following news of Hofman’s dissatisfaction with the Keelung showing, it was reported that Mei-Hua Wang, director general of TIPO, said it is highly likely that, due to its creativeness, Hofman’s rubber duck should have copyright protection in Taiwan. T is was a stamp of approval by the Directorate General,
www.worldipreview.com
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