JAPAN Law and Practice Contributed by: Junichi Ueda, Etsuko Hara, Nobuto Shirane, Takahiro Hayase, Yutaka Shimoo and Miki Goto, Anderson Mori & Tomotsune
As for remedies for infringement, the holder of a trade mark right may file a claim for: • an injunction; • disposal of infringing compositions, etc; • damages; • restoration of credibility; and • restitution of unjust enrichment. There are presumptive provisions regarding the amount of damages that may arise as a result of trade mark infringement. Acts of importing goods that infringe trade mark rights are subject to border control measures under the Cus - toms Act. Any intentional infringement of a trade mark right is also subject to criminal penalties. 7.3 Industrial Designs A creator of a design that is industrially applicable may be entitled to obtain a design registration for that design. “Design” in the Design Act is defined as: • the shape, patterns or colours – or any combina - tion thereof – of an article (including a part of an article) or a building (including a part thereof); or • a graphic image on a screen (including a part thereof; but such protection of a graphic image or a part thereof is limited to those for use in the operation of a device or those displayed as a result of a device performing its functions) that creates an aesthetic impression through the eye. Building interior designs are also eligible for a design registration under the Design Act. A person requesting a design registration must submit a written application to the Patent Office. Drawings, photographs, models or specimens must be attached to the written application. The legal requirements for obtaining a design registration are: • industrial applicability; • novelty; and • that the design is innovative and without prec - edent.
A design right will become effective upon registration. The duration of a design right, in principle, expires 25 years from the date of the application for design reg - istration. The holder of a design right has the exclusive right to commercially exploit the registered design and designs similar thereto. As for remedies for infringement, the holder of a design right may file a claim for: • an injunction; • disposal of infringing compositions, etc; • damages; • restoration of credibility; or • restitution of unjust enrichment. There are presumptive provisions regarding the amount of damages that may arise as a result of an infringement of design rights. Acts of importing products that infringe design rights are subject to border control measures under the Customs Act. Any intentional infringement of a design right is also subject to criminal penalties. 7.4 Copyright A person who creates a work (the author) enjoys the moral rights of an author and the copyright with regard to the work. “Work” in the Copyright Act is defined as a creatively produced expression in which thoughts or sentiments are expressed and that falls within the literary, academic, artistic or musical domain. The moral rights of authors include: • the right to make a work public; • the right to attribution; and • the right to integrity. The copyright includes the right of: • reproduction; • stage performance and musical performance; • on-screen presentation; • public transmission;
• recitation; • exhibition; • distribution;
524 CHAMBERS.COM
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