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SUPERYACHT #13
Summer 2007

Article selected from our quarterly magazine dedicated to the largest and most luxurious boats with information, interviews, technical articles, images and yachting news


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Article by
Fabio Ballini


Legal safeguarding of intellectual property applied to yacht design

Design safeguard

Unlike other production sectors, in these recent crisis ridden years the yachting sector has grown and become highly dynamic, demonstrating extraordinary vitality. The form or design of Made in Italy vessels has a determining competitive and market value in the commercial success of the product itself. This is why its legal safeguarding takes on a role of strategic importance. To combat the phenomenon of fakes produced by companies that do not hesitate to clone the design of others' vessels, Italian shipyards must safeguard themselves by means of the instruments made available by the law to protect their creations. It should be emphasised that protection of design has been extensively simplified by European Community rulings. Two provisions of revolutionary scope have been introduced on the subject: Directive 98/78/CE of 13th October 1998, and Regulation N 6 of 12th December 2001. Both had the purpose of harmonising legal protection of designs throughout community territory. Strictly by way of example we may say that in our regulations the protection of drawings, engineering designs and "sketches" of boats originate in two fundamental types.

 

Design safeguard

Design safeguard

Design safeguard

Design safeguard

Design safeguard

 
The first system for protecting our design or part thereof is recourse to Legislative Decree (LD) N 30 of 10th February 2005, "Industrial Property Code", in accordance with Art. 15 of Law N 273 of 12th December 2002, recently integrated and partly modified by LD N 140 2006, the so called Enforcement Directive. The Code makes great contributions in terms of clarification and simplification, containing as it does all the various regulations regarding intellectual property rights and dealing with them in a systematic and organic way. It also revises the complex pre-existing regulations, taking into account new requirements and the problems that have emerged with technological progress. As for the design of a pleasure craft, the shipyard, or whoever is involved, can protect "sketches" through the legal instruments offered by our regulations. One solution for protecting aesthetic design, the lines of a vessel, in accordance with the regulations in force in Italy, can be found in the discipline regarding drawings and models, governed by LD N 30 of 10th February 2005; but the optimal measure to take is to register the model by depositing not a sketch or plan but a series of photos with all views of the vessel in such a way that the details may be all the more appreciated. The problem however remains, since photos can be taken only after the vessel has been built, thus losing a year of protection or more. We may therefore say that in depositing sketches it is of prime importance that they be numerous and well detailed so that the exterior features, the only ones that can be protected by a model or drawing, may be best appreciated. These regulations state that in order to be registered the drawings or designs (or part thereof) of a vessel must possess the requisites of novelty and individuality, in accordance with Art. 3, paragraph 2 of Directive 98/71/CE, incorporated with LD N 30 of 10th February 2005. Identification of these requisites is the basis of a programme for setting up safeguarding of the drawing. This means that the design, the drawing, the lines of a vessel must have distinctive qualities in comparison with other products already on the market: which is to say they must be original. But what is meant by original? This opens up a fairly delicate debate. The Giurì del Design believes that drawing inspiration from something is different from copying: "the designer must work with his own planning and devising without parasitically exploiting that of others." It is not forbidden to absorb the contents of other people's thoughts as long as this leads to a personal development and design. It should be pointed out that a work may be defined as design when it implements a fusion of technical and creative features. The more values it incorporates, the more it is design. And again: A drawing or model must be considered new when an identical model has not been created or circulated previously. With reference to the requisite of an individual character, this is substantially founded on a judgement of general impression on the part not of the average consumer but of the informed end-user, as per Art. 5, sub-paragraph 1 of Directive 98/71/CE. And it is precisely with reference to the informed user, and not to the sector expert, that the community and subsequently the Italian legislators aimed to give the designer a special creative aspect, differentiating his work from what is envisaged for inventions. This figure plays a fundamental role since he can identify deformities which may be determinant in establishing whether the drawing or model has individual features and therefore deserves safeguarding. According to Directive 98/71/CE, a drawing or model may be safeguarded only if the impression it arouses in the informed user is different from the general impression aroused by any model or drawing previously seen. With reference to the shipping sector it is a complicated matter to identify the informed user precisely: in fact the regulations in question do not speak of sector experts (owners, engineers, brokers) as is required in the field of industrial inventions. It might be a yachtsman, a yacht designer or salesman. The introduction of this figure lowers the access threshold to safeguarding in the sense that in comparison with the past it's easier to obtain the requisite of individual character. Nevertheless by modifying only one single detail of our design a competitor may obtain safeguarding and acknowledged newness of the product without being considered a plagiarist. Duration of the protection of non-registered models or designs is three years from the date when the drawing or model was made public in the Community for the first time. For registered community designs or models the duration is 5 years. Duration of protection begins at the date of depositing the registration application. Protection may be extended for one or more five year periods for a maximum of twenty-five years from deposit date. Another solution adopted for protecting boat design is copyright: "works of industrial design that are in themselves of a creative nature with artistic value." As for the yachting sector, there are prejudices on our legislator's part in judging as valid the creativity and artistic value of the design of a vessel in consideration of the notable presence of mass vessel production. Yet on the other hand it must be acknowledged that these features of creativity and artistic value may always be applied to custom yachts which are designed and built in accordance with the owner's desires and may be considered actual one-off pieces. The legal protection accorded by national copyright laws lasts until 25 years after the designer's death and is a much broader safeguarding in comparison with that of the registration of models. This ruling however clashes with Art. 1 of Directive N 93/98/CE which sets the duration of protection at 70 years from the copyright holder's death. The Industrial Code, updating to Community regulations, has even allowed the previously forbidden possibility of accumulation. Prior to Directive 98/71, the principle of accumulation between author safeguarding and patent safeguarding was not recognised in Italy. Another means of legally safeguarding pleasure craft designs is based on unfair competition, in particular as per Art. 2598 Civil Code N 1 (slavish imitation). In order to apply this type of safeguarding - first of all the plaintiff must be one or more companies - there needs to be the presupposition that the vessel is a work of design, even if there is no legal decision on the matter, and that the product has been entirely copied, which is to say produced by means of so called slavish imitation. This kind of safeguarding is therefore hard to apply. After this general overview on the ways of protecting vessel design, we may substantially state that there are two avenues commonly possible: protection of engineering plans by means of copyright, but as mentioned earlier it's a hard road to travel and is hardly ever tried since it's difficult to prove that the design of a vessel is creative work and therefore worthy of safeguarding; the other way is to obtain safeguarding through design models, typically for parts of the vessel or its furnishings which feature a special aesthetic connotation. The updating of Italian design legislation in accordance with the community directive is an important step forward in the process of modernising the regulatory picture with regard to intellectual property, a subject which in recent years has undergone, more than any other matter, a profound renewal, thanks above all to a series of international and community initiatives. But this shared effort risks nullification through the interventions mentioned above that perpetuate the ambiguous and questionable leanings of Italian legislation with regard to the subject of design. The European Community is also launching an ambitious project: LeaderSHIP 2015 - Defining the future of European shipbuilding - Competitiveness through excellence. Among the various objectives is the safeguarding of European shipbuilding techniques and know-how by means of ad hoc regulations. I have faith in LeaderSHIP 2015 and its future developments, in the hope that there may first of all emerge a desire to intensify the safeguarding of yacht design (in which Made in Italy is the undisputed leader) thus offering Italian and European shipbuilding those valid and efficient instruments of defence which will make it so competitive as to ensure that Europe will be at the helm of shipbuilding worldwide.

PLAGIARISM IN YACHT DESIGN

Carlo Nuvolari's opinion
We often see "similar" boats on the market. At Nuvolari & Lenard we recently had two designs shamelessly copied: a middle east yard cloned one of a famous series of sports yachts we designed for the American company Palmer Johnson, and at the last Dubai Boat Show we saw the model of a yacht that was the very double of an 82 metre we're building with Oceanco in Holland. In both cases legal action was taken by the yards holding the licences for our designs, who are strongly committed to combating the phenomenon. The boundary between "copying" and "drawing inspiration" is so unstable that in practice it's almost impossible, on a strictly legal basis, to get your rights protected within a reasonable time span. But actually the question of imitation is less damaging than it might appear. There are precise "classes" in the yachting market, separations of "rank" which distance the various shipyards and designers. This "separation" somehow mitigates the problem of copies. Making a parallel with the car world, if a Korean manufacturer brought out a sports car very similar to a Ferrari, it wouldn't do much damage to the Italian company because in the luxury field purchasers selectively buy only what is perceived as truly exclusive. In a certain sense, if they copy Nuvolari & Lenard we feel strengthened by it. It means that our designs are considered winners and original. So the fact of getting copied doesn't damage us so much because people who lower themselves to copying are also obliged to propose the design to shipyards of a lower "rank" who content themselves, precisely, with making copies. This does nothing other than reinforce the validity of the "originals" and therefore their value and market attractiveness. Fortunately the class division of the design market isn't impermeable, indeed it's in continual ferment: so the only ones to rise are those who deserve to, by designing something really original.

Carlo Galeazzi's opinion
I read the interesting article you sent me. It deals with a subject that I too have been involved in recently. There's no doubt that the research and design work carried out with great investments by the more serious yards is very often exploited fraudulently by unscrupulous competitors. Over and above the various forms of legal safeguarding, I'm convinced that this problem of plagiarism should be stigmatised right away and reported by sector magazines whenever the occasion arises, as you're doing now. But we designers should also do our bit, increasingly differentiating our work through innovation, originality and formal characterisation, thus making the copy more evident and therefore somehow more difficult. An example to make things clearer: the six square windows devised by Righini for the Azimut S range vessels are such a powerful sign that no competitor has had the courage to replicate them to date. In fact it's clear that when you design a product completely different from another it's easy to see the contribution of something new and consequently to identify any copies. But when the differences are slight and subtle, unmasking becomes tougher and more complicated. Unfortunately the aptitude for plagiarism is very widespread throughout the industrial sector, not just in the yachting world. In saying this I don't want to minimise the problem in any way, indeed I feel that this internal phenomenon is actually far more serious for the whole "Made in Italy" system than for the external and much feared Chinese "danger".

Giovanni Zuccon's opinion
I promised a good friend of mine, a journalist, that I'd write an article for his magazine about my personal experiences in the yachting sector, experiences in which I have unfortunately had to tolerate, including recently and with a great feeling of impotence, the violence of "thefts" of ideas, the lightness and superficiality with which boats are "copied" without the minimum restraint, an actual cloning of products on which I've worked with great effort for years, but unfortunately without being able to defend myself from this depressing intellectual "underworld". So I give a warm welcome to all actions aimed at safeguarding vessel design and special thanks to the people who are fighting this battle! Without going into the specific meanderings of the various laws that don't protect the world of ideas - for which lawyers are certainly more adapted than architects - what I'd like to do is recall certain aspects that are all too often forgotten but in my view indispensable conditions for our everyday work which ought to lie at the heart of our roles as designers, producers, owners and also journalists. Let's learn to think a little about our vessels not only as technical syntheses of the desires of owners, designers and builders but also as a synthesis of "ethical systems" in which different cultures are really represented. Each figure must know how to do his own job: shipyards must learn to give the right value to the design, including economic value, and first of all not to accept ideas that lead to an identity crisis. They should not create a product incapable of contributing to the construction of their own history. We designers must constantly remind ourselves of the research nature of our work, learn to build up relationships of continuity with the yards, an indispensable condition for ensuring good design. We must learn to pay more attention to others who do the same job. Owners, around whom the whole system of players and products turns, must always remember the historical role that "princes" have had in the building of their architectures and not limit themselves, as so often happens, to seeking maximum profit with minimum outlay. Lastly, I'd also like to underline the strategic role of journalists who all too often, burdened by the "necessities" and requirements of the magazines, are obliged to supply analyses that are not very critical of the products they present. This contributes to creating a product image which in many cases certainly does not correspond to the truth.

Fulvio De Simoni's opinion
The phenomenal transformation of the pleasure craft sector from a prevalently small business niche production into a semi-industrial one has highlighted the propensity - always present in the sector - of certain yards to carefully "observe", so to speak, what the others are doing rather than invest in research. Obviously this is damaging to a shipyard that invests more resources in product development, both in terms of style and building techniques, and is obliged to spend in order to remain in the avant-garde on a market where, precisely because it is invaded by competitors who unlawfully exploit such yards' experience and research by making similar and indistinguishable yachts, the originals soon lose their uniqueness and must be replaced by new models. Unfortunately the position of the sector press, closely linked to the yards whose advertising in part finances their publication, does not help in denouncing this trend. Instead of eulogising every yard indistinctly, the press ought to help in combating this bad habit - moreover criticised by everyone - by acknowledging the merits of those ahead of their time and criticising those who appropriate research developed by others. Unfortunately there's no easy solution to the problem. The designer's deontological code is evidently insufficient, so more rigorous legislation must be drawn up and applied with regard to regulations safeguarding copyright of images and forms. The patenting procedure should be streamlined. In a word, research and creativity must be better safeguarded in order to give greater stimulus and impulse to design and consequently advantages to the end-user, which is to say the buyer. Unfortunately I don't hold out too many hopes in the legal itinerary. What I see as a possible avenue is represented by the market itself which consists of people who, just as they can recognise quality and stylistic or technological innovation in a car or an item of furniture or clothing, acquire a similar sensitivity and critical spirit - perhaps with the aid of the specialised press - in their relations with the yachting world, rewarding those who make a real contribution to development.

"YDESIGN" DESIGNERS' COMMENT

As a young design group seeking to establish our image in this sector we are strongly affected by the problem in question. In fact, being unable as yet to rely on the prestige that an established name obviously guarantees, we must put our professionalism forward by explicitly "revealing" our ideas and design methods through publications, the web, advertising etc., thus exposing ourselves to plagiarism. Safeguarding intellectual and subsequently industrial property rights for your own ideas is very hard to implement and often depends on the "clout" of the applicant who wants to exercise it, wholly to the disadvantage of the less well established. In a word, the heart of the matter is of a cultural nature: we must safeguard and valuate at all levels the work of those who design and make products that are the fruit of creativity, research and innovation, to the detriment of those who take ideas or products not their own to create, without risks and in an economically competitive way, products targeted for the market.