SUPERYACHT #13
Summer 2007
Article selected from our quarterly magazine dedicated to the largest
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Article by
Fabio Ballini
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Legal safeguarding of intellectual property applied to yacht design
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.
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.
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