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Q2. Under which criteria is a design not registered? And, is there any measure to register a design that has already been known to the public?

Q2. Under which criteria is a design not registered? And, is there any measure to register a design that has already been known to the public?

A2.(1). The following cases are examples under which a design application is not granted by a known fact.

(i) In Japan or any other country, prior to the filing of the application, a design in the application is publicly known, or described in a publication distributed or made available to the public through electric telecommunication lines(Art. 3(1)(i),(ii));
(ii) a design similar(See Note A2-A) to the design of the aforementioned (i) (Art. 3(1)(iii)); or
(iii) a design easily created by a person who has an ordinary skill in the art to which the design pertains, on the basis of publicly known design features (See Note A2-B) in Japan or any other country, prior to the filing of the application (Art. 3(2)).

Note A2-A: “similarity” is defined as follows:
(i) In comparing two designs, the article is the same or similar to each other and the design feature (See Note A2-B) is similar; or
(ii) In comparing two designs, the article is similar and the design feature (See Note A2-B) is the same.
“Similarity” is determined as a whole, based on the aesthetic impressions extracted by individually assessing a common part or different part between two designs to be compared, from the view point of a consumer (including a dealer).

Note A2-B: The design feature is a form or configuration of a design including a shape, patterns or colors, or any combination thereof.

A2.(2). Even if a design has been publicly known before filing in Japan, in the following cases, the design is exceptionally deemed to be kept secret and can be filed.
(i) In the case where the act which made the design to be publicly known was performed by a person who is entitled to file the design application: or
(ii) In the case where the act which made the design to be publicly known was performed against the intention of the person who is entitled to file the design application.

An applicant who seeks the exceptional handling explained above has to file the application within six months from the date when the design was publicly known.
In addition in the case of (i), the applicant has to submit a document which explains why and how the design was publicly known within 30 days from the filing date.