Expert: Rene Hasekamp - 4/30/2011

Question
Hi. How can I tell if a shoe design has a current patent on it. I would like to manufacture a shoe that I purchased about 20 years ago that I believe came from Europe, maybe England. I still have the shoes, to I could have the design drawn up from the actual shoes. How long does a design copyright last and does it apply if the shoe is no longer being made and how could I find out if anyone holds a design copyright on the shoe, etc. Thanks so much!

Answer
To start with:

1) I am a patent expert, not a design or copyright expert, although I have some knowledge about designs and copyright.

2) Please realize that your question can have to do with patents (for technical, inventive, aspects), designs (for industrial design aspects) and copyright (for artistic aspects).

If I assume that there are no patentable aspects on your shoes (patents expire after 20 years anyway and are not renewable) and there are no copyrighted aspects (aspects that make the shoe - what the law calls - "a work of art"), then you only have to bother about designs (industrial models).

Copyright is a very tricky system, however: Adidas shoes have three stripes, as you know. When a large international firm brought sport shoes on the market with four stripes, that appeared to be a violation of the Adidas copyright. So, do not step over this point too lightly!

As far as design protection is concerned, I an only aware of the Benelux system, but I can hardly imagine that international treaties (administered by WIPO) have rules that are different in any important aspect. Normally, if International protection is different, "lower" treaties are complied to the international ones.

In the Benelux, design protection is for 5 years at a time, and can be extended up to a maximum of 25 years. So your shoes might still be protected as a design. International design registration is done through WIPO. See the link: http://www.wipo.int/ipdl/en/hague/search-struct.jsp for a database for designs.

Before you start manufacturing the shoes, be 100% certain that there are no aspects that have "artistic" value and are still protected by copyright. Copyright exists for up to 60 years after the creator dies, and is even renewable in some countries.

Hope this answers your question. In case of serious doubt consult a design lawyer!

Rene Hasekamp.