Hello friends!
Today, we are tackling a topic that has become a nightmare for designers and brands: Design right infringement and the “originality” defense 🎨⚖️. Just recently, a friend of mine was devastated when he discovered that his meticulously crafted furniture design was nearly copied. “But this was my idea!” he exclaimed. So, how could he prove this in court? This is where the similarity rate calculation comes into play. Let’s navigate this complex but crucial issue together!
Design Rights and Originality: Why Are They So Important?
Design rights protect the aesthetic appearance of a product. Originality is the foundation of this right—your design must be “never seen before.” Think of it like “original flavor” in a recipe 🍳. The ingredients might be the same, but if the presentation and combination are different, the recipe is yours. So, how do you prove a design has been copied? This is where the similarity rate comes into play.
🔍 Important Note: The Turkish Patent and Trademark Office (TPE) applies the “informed user” test to determine if a design is original. That means the design isn’t evaluated by an ordinary consumer but by someone knowledgeable in the field. For details, check out TPE’s design protection guide.
How Is the Similarity Rate Calculated? Math or Art?
The similarity rate is a numerical expression of the differences and similarities between two designs. However, things get a bit murky here because there is no 100% mathematical formula! As highlighted in the European Court of Justice’s PepsiCo vs. Grupo Promer case, similarity assessment is based on “overall impression.” In other words, the holistic impact of the design is key.
So, what’s the situation in Turkey? Here’s a comparative table:
| Criteria | Turkey | EU | USA |
|---|---|---|---|
| Evaluation Method | Informed user test | Overall impression + technical analysis | Ordinary Observer Test |
| Similarity Rate | Qualitative (not numerical) | 70%+ similarity is considered a serious violation | “Striking similarity” is required |
| Originality Defense | Distinct details in the design | Original character of the design | Market impact and confusion |
As seen in the table, Turkey does not have a fixed percentage for similarity rate. However, in Europe, a similarity over 70% is usually considered infringement.
Originality Defense: 3 Steps to Protect Yourself!
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Document the Details: Keep records of every stage of your design process (sketches, prototypes, email exchanges). A friend of mine won a case by presenting the version history of his 3D modeling software as evidence!
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Obtain an Expert Report: Request a similarity analysis from an independent design expert. For example, the Ankara Design Institute provides detailed reports based on industry standards.
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Highlight the “Noticeable Difference”: In court, emphasize at least three distinct features that set your design apart from competitors. Even a single line in fabric patterns can prove originality!
