Table of Contents

Intellectual Property, Unfair Competition and Publicity

Intellectual Property, Unfair Competition and Publicity

Convergences and Development

European Intellectual Property Institutes Network series

Edited by Nari Lee, Guido Westkamp, Annette Kur and Ansgar Ohly

Dealing with rights and developments at the margin of classic intellectual property, this fascinating book explores emerging types of regulations and how existing IP regimes inform and influence the judicial and legislative creation of “substitute” IP rights.

Chapter 9: Protection of the first mover advantage: Regulation against imitation of the product configuration in Japan

Yoshiyuki Tamura

Subjects: law - academic, intellectual property law

Extract

The Japanese Unfair Competition Prevention Act (hereinafter UCPA) prohibits slavish imitation of product configuration, under its Sec 2.1 (3). The section was first introduced in Japan when the UCPA was revised in 1993. Previous unfair competition law in Japan was considered to be an implementation of the Paris Convention of 1934, and the 1993 UCPA revised a significant portion of this law. In contrast to the current status of Japan as an IP-developed nation with an aggressive 'IP nation policy',the protection of trade secrets was introduced only in 1990, and the protection for registered service marks was introduced as late as 1991. Until the late 1980s, Japan was considered an IP laggard among the industrialized nations. Prior to the 1993 revision, unjust conduct of imitation in general was not regulated by any law, unless it specifically was covered by the scope of a right granted by patent or copyright or other individual IP legislation. Instead, around the second half of the 1960s, courts began to extend protection to product configurations as a widely known indication under the UCPA, where the product configuration indicated a specific origin of the goods, had become well known and acquired the identical function as a indication of a widely known product. However, not all product shapes and configurations become widely known. Some court decisions have denied protection for technical shapes.

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