JAPAN Law and Practice Contributed by: Junichi Ueda, Etsuko Hara, Nobuto Shirane, Takahiro Hayase, Yutaka Shimoo and Miki Goto, Anderson Mori & Tomotsune
A person requesting a trade mark registration must submit a written application to the Japan Patent Office. Upon filing an application, one or more goods or services for which the trade mark will be used must be described in the written application. The legal requirements for the reg - istration of a trade mark are that: • the trade mark is to be used in connection with the goods or services for which the trade mark is registered; • the trade mark is capable of distinguishing itself from other goods or services; and • the trade mark is not unregistrable for rea - sons of public interest. A trade mark right will become effective upon successful registration. The duration of a trade mark right is ten years from the date of registra - tion, but may be renewed by the holder of the trade mark right by filing an application for reg - istration of renewal. The holder of a trade mark right will have an exclusive right to use the registered trade mark in connection with the designated goods or des - ignated services. The holder of the trade mark right may also prohibit a third party from using a trade mark that is similar to the registered trade mark. 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 Customs Act. Any intentional infringe - ment of a trade mark right is also subject to crim - inal penalties. 7.3 Industrial Design A creator of a design that is industrially applica - ble may be entitled to obtain a design registra - tion for that design. “Design” in the Design Act is defined as: • the shape, patterns or colours – or any combination 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 dis - played as a result of a device performing its functions) that creates an aesthetic impres - sion 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 regis - tration are: • industrial applicability; • novelty; and • that the design is innovative and without precedent.
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