WIPOD – Design Talks: Transcript of Episode 8
Protecting Creativity: Practical Insights for Designers
Sarah Lucek: Welcome to another exciting episode of Design Talks Design Lovers! I'm your host, Sarah, and today we are discussing a topic that is essential for all designers, protecting creativity. When you look around you, when you look at all the objects surrounding you, your favorite chair, the most beautiful pair of shoes you have, we can imagine that designers pour their hearts and minds into creating something new and unique. And once their ideas are concrete and they share them with the world, how can we ensure that these designs are protected? How can we prevent others from copying their work? And how can they secure their rights to the designs they create?
In this episode, we have a special guest. Please join me in welcoming Ms. Amano Ishikawa, Deputy Director of Design Policy Section in the International Cooperation Division of the Japan Patent office, JPO. Ms. Ishikawa is also a design examiner. With her help, we will highlight the role of the JPO as well as the importance of design, protection, and finally, what designers in developing countries can do to safeguard their creativity.
Without further ado, let's start our journey to understanding how protecting creativity is a key to success. Konnichiwa, Ishika-san. Welcome and thank you for accepting our invitation. Please tell us a bit about yourself.
Amano Ishikawa: Thank you for the introduction, Sarah. It is a great honor to be invited to this wonderful podcast today. I'm a design examiner at the JPO. In the past, I was also seconded to the customs office where I was involved in enforcement against design rights infringement. In fact, during my university student days, I majored in environmental design. And although I did not become a designer myself, I am currently working to protect creativity by helping to support designers. Although our time is short today, I look forward to discussing with you some options for designers to protect their creativity.
Sarah Lucek: Thank you very much for this nice introduction. So why should designers care about protecting their work? Imagine you've spent months working on a brilliant design. Everything has been perfectly thought out and designed and is now ready to enter the market. But your product can remain vulnerable to counterfeiting. How can designers make sure their creativity is valued and safeguarded?
Amano Ishikawa: Yes, one way to evaluate creativity is by applying for and winning well-known design awards. However, for commercial products, sales performance is naturally a key measure of value. Unfortunately, well-designed and widely recognized products are more likely to be copied or imitated.
Therefore, to prevent others from using your design with permission, it is important to file a design registration application with the IP office and obtain design rights when your design is almost finalized. Substantive examination is conducted at the JPO when granting design rights. Specifically, the examination checks whether the design is new, that is to say has novelty in the world and whether it is not a design that can be easily created. Therefore, a registered design is officially endorsed, objectively proving its originality and building trust and reassurance.
Additionally, registered designs are published in the JPO’s design Gazette. Reviewing the Gazette is a common practice among companies with strong IP literacy, as it helps them avoid infringement. As a result, this also makes it more difficult for competitors to release similar products.
Sarah Lucek: So, what happens when designs are not protected? Could you share an example of how a lack of protection affected the designer?
Amano Ishikawa: Sure, if your design is not protected by design rights, you will not be able to take legal action against those who copy your original design, including removing counterfeit products from the market.
Let me share an unfortunate real-life example. Many companies outsource manufacturing to overseas factories to reduce costs. Even with IP clauses in the contract, a manufacturer with malicious intent may still produce and sell an imitated design of the product without permission. In such cases, without design rights, both the company and the designer have no choice but to suffer in silence. However, if both the company or the designer had obtained design rights, they might have been able to stop the counterfeit products and claim damages.
We also hear about regrettable cases where people saw no need for design protection at the time of their product launch, but later realized their mistake when sales turned out to be much better than they expected. In these cases, the designer should have benefited from increased sales and greater recognition. However, counterfeit products reduced the profits they could have earned. Moreover, if consumers mistook counterfeits for genuine products, it could result in financial losses, damage to the company's reputation, and even potential health risks. So, considering the effort designers put into their work, such situations are truly disheartening.
Sarah Lucek: Indeed, such stories highlight why it's critical to protect our designs. It's not just about the legal side, it's also about maintaining control over our creative work. Now, with tools like the Hake system, designers can more easily secure international registration for their designs, laying the foundation for effective protection. But let's turn our attention to Japan, a member of the Hake system, and explore how the JPO has been helping local designers navigate the world of design protection. Could you tell us more about the initiatives the JPO has implemented to support local designers?
Amano Ishikawa: Sure, at the JPO, we have many initiatives to support designers, and I would like to introduce three of them. First, we have company visits and on-site seminars led by IP specialists. They visit small and medium-sized enterprises across Japan to explain how to effectively use IP, including design rights in their business activities and management strategies. And we have received positive feedback from the companies we visited, such as “it's helpful to have someone visit us because we're busy every day”, and “I didn't quite understand the support measures from the JPO's website, but after hearing the explanation directly, I thought I would try using them”, and “I used to think IP was difficult, but now I feel it is more familiar and my interest in IP has increased”.
Second, we have the accelerated examination system for designs. This system is used in urgent cases when someone is considering filing for design registration overseas or when counterfeit products are already on the market. The goal is to grant design rights more quickly. In Japan, normally it takes an average of six months until the first action, but with the accelerated examination, it takes an average of less than three months. Also starting in April 2025, we plan to include applications from startups and individual businesses within the scope of accelerated examinations.
Third, we have a financial support program that covers part of the cost of obtaining design rights overseas. When expanding overseas, designers who want to protect their designs using design rights must obtain rights in each country due to the principle of territoriality. As a result, significant costs naturally arise. So, to support overseas expansion, we subsidize half of the costs.
Sarah Lucek: That's nice. These initiatives are very interesting. Thank you for sharing them. How do they empower designers in Japan to feel more secure about sharing their work?
Amano Ishikawa: As part of the first initiative, the company conducts visits and on-site seminars led by IP specialists. During these sessions, we listen to the design-related issues of small and medium-sized enterprises and connect them with appropriate support organizations and experts, proposing the best solutions. When designers do not understand many specialized aspects of IP and design rights, they may feel anxious. To address these concerns, this initiative helps alleviate such concerns and allows them to work with peace of mind.
The second initiative, accelerated examination for designs, is especially important in urgent situations such as when counterfeit products already exist and cause damage. In such cases, the damage increases every day, which increases frustration and anxiety. By obtaining design rights as quickly as possible, you can take action and alleviate these concerns.
In the third initiative, the financial support program, it helps build trust when Japanese designers expand into overseas markets if they introduce their work to potential business partners. This supports market development and smooth business operations. It also helps prevent imitation damage in target overseas markets, giving businesses a sense of security.
Sarah Lucek: It's clear that these initiatives not only support designers practically, also give them confidence in protecting their work and expanding internationally. The combination of legal security and financial support seems essential for fostering innovation and competitiveness. It seems that the JPO has really opened opportunities for designers to succeed.
But what about designers from abroad and more specifically from developing countries, for example, for designers in developing countries, navigating IP protection can be challenging and often too complex to manage or sometimes completely overlooked. What advice do you have for them?
Amano Ishikawa: Okay, in recent years, the possibilities for expanding offices have greatly increased. When doing so, designers need to be aware of obtaining rights in the countries they plan to enter; but design systems differ by country. So, to support foreign designers filing their applications in Japan, the JPO has published a guidebook called “Your Key to Success”, which is available in English, Chinese, and Japanese on the JPO website. This guidebook concisely explains the features of the Japanese design system and recent legal amendments, along with common mistakes made by foreign users during the design application process in Japan, including actual and hypothetical cases of registration. Looking beyond Japan, some countries still don't have a well-established IP system. In those places, many designers are not very familiar with how the system works. So first and foremost, I think that they need to understand that IP rights exist including design rights. But actually, even in Japan, many people are still not fully aware of how important design rights are. Therefore, the JPO is focusing on raising awareness of the design system by publishing guides that introduce the basics of the system along with the benefits and usage of design rights, as well as introduction to the application process. We also hold seminars to educate people about the design system.
And more broadly, designers should also understand the importance of IP literacy. This is crucial because if they infringe on someone else's design rights, whether they mean to or not, they face serious risks. That could mean being forced to change their own design or even getting sued for damages.
Sarah Lucek: So from your answer, the main advice is that designers first need to understand that IP rights and design rights exist. And that is also important for them to be aware that there are available resources, whether through seminars, awareness events, or over materials. Do you think that WIPO and precisely the Hague System can be a game-changer? And in your view, how does the Hague System benefit designers from these regions?
Amano Ishikawa: Yes, of course, the Hague System is an innovative and very beneficial tool. Specifically, it allows for the easy registration of designs in multiple countries with a single application, making it easier to compete in the international market while also significantly reducing costs and time.
According to a survey conducted by the JPO in 2021, Japanese users find that the most attractive feature of the Hague System is its ability to allow them to obtain rights in multiple countries through a single application. They also appreciate the cost savings and the convenience of centrally managing design rights across multiple countries. For these reasons, many users choose the Hague System. Moreover, since a single application can include up to 100 designs, as long as they belong to the same Locarno class, some users prefer the Hague System when they need to submit similar designs together to reduce costs. Others use it when they want to file for the same design in three or more countries.
Furthermore, there is no need to appoint local attorneys in foreign countries or prepare application documents in different languages for each country. With this significant benefit, I am confident that the Hague System is a great system for local designers. As evidence of this, I have heard that the use of the Hague System is increasing significantly worldwide, and we at the JPO have noticed the same trend.
Since the JPO joined the Hague Agreement in 2015, the number of applications designating Japan through the Hague System has been increasing every year. In 2023, about 13 % of all design applications were international design registrations using the Hague System.
Sarah Lucek: Thank you for sharing these really interesting and nice statistics with us. With the Hague System, protection becomes more affordable and accessible, giving them a real opportunity to compete on a global scale. I think that it is incredibly empowering for designers in developing countries. What are your thoughts on this?
Amaro Ishikawa: I agree. Many designers today aim to improve the usability and functionality of products. These designs address social issues by adapting to the specific conditions and needs of individual countries and regions. Likewise, some designs emphasize beauty, deeply rooted in the traditional and cultural aspects of particular regions. Recently, I have seen reports of companies in developing countries increasing their competitiveness through design and successfully entering overseas markets. The functional beauty of designs created to solve social issues can appeal to other countries facing similar challenges.
Similarly, aesthetically pleasing designs inspired by local traditions and culture can attract overseas markets interested in cross-cultural experiences. Therefore, it is ideal for companies and designers to have a clear vision for success and the confidence to conduct business not only in their own country but also internationally, including obtaining design rights overseas. In such cases, they can benefit from the Hague System, which offers a convenient and cost-effective way to file international applications. The Hague System can be a valuable tool for expanding global business.
According to a survey conducted by the JPO in 2021, Japanese users mainly use the Hague System to file applications in the countries where they sell their products. With the rise in Hague applications, more users are also filing in countries where counterfeit products are distributed or manufactured. In this way, companies can initially use the Hague System in a simple way as a partner for their overseas expansion. Then, as they grow and face new challenges, such as increased competition or counterfeit distribution, they can gradually expand their use of Hague System to strengthen their design rights. This adaptable strategy is both practical and effective. Although this requires both time and investment, it is important not only to obtain design rights, but also actively use them.
I have heard that by continuously taking measures against counterfeit products, such as lawsuits and sending warning letters, a company gradually became recognized as one that values IP, and obvious imitations decreased. As an external image strategy, it is also important to maintain a firm and resolute attitude, it does not give into malicious action.
Sarah Lucek: Thank you for that answer. Beyond individual designers, governments in developing countries also play a crucial role in fostering creativity and innovation. What would you say governments can do to better support local designers?
Amano Ishikawa: First, the government should listen carefully to the voices of local designers and other users. It is important not only to lead designers, but also to offer them support. Design is a necessary element for adding high value products and differentiating them from competitors. Some companies incorporate distinctive features to build their own brand and create long-term designs based on the same single design concept. In order to protect these designs more effectively, we have systems at the JPO such as the partial design and related design systems which better meet the needs of applicants.
In line with this commitment, we will continue to listen to users' needs and strive to provide high-quality services that benefit society as a whole. At the same time, we will carefully balance our services to support businesses without giving unfair advantages to rights holders at the expense of the industry.
Secondly, it is important to continue making improvements without sticking to past practices. Through research and discussions with companies, we can continue to improve the legal framework as well as the speed and quality of examinations. In 2023, the JPO made the design system more user-friendly by amending the Design Act to reduce and simplify the procedural requirements when applying for exception to lack of novelty. Additionally, the JPO is currently developing a design system that adapts to new technologies such as virtual spaces and generative AI.
Thirdly, it is important to develop a professional workforce. By studying IP roles and industry trends, continuously learning how new technologies, and gaining diverse experience, IP office staff can develop into proactive professionals.
Sarah Lucek: These are excellent points. By doing so, they will not just protect designs, but also create an environment where creativity can grow, and which will drive innovation and contribute to a more competitive economy.
Arigato gozaimasu Ishikawa-san. Thank you for sharing such helpful advice on protecting creativity. A huge thank you to all our listeners for joining us on this informative episode of Design Talks, brought to you by the Hague Registry at WIPO, the World Intellectual Property Organization, with support from the Funds in Trust Japan Industrial Property Global.
Be sure to tune in to our upcoming episodes and in the meantime, you can listen to all our previous ones on our website or on platforms like Spotify, Apple Podcasts, and YouTube podcasts. To quote the renowned designer, Charles Eames, “The details are not the details. They make the design”. Protecting those details, your unique creative work is crucial for every designer, including those in developing countries. By securing your designs, you ensure that your creativity can be recognized, valued worldwide, and contribute to meaningful change.