1. Image Design

According to the revised Design Law, an image itself is protectable (Art. 2 Para.1). Particularly, the image displayed on articles separated from the article functionally associated with the image can be protected.

However, if all images as mentioned above can be protected, all kinds of images can be protected. To this point, the revised Examination Guideline for Design restricts the protectable image to the following images.

(1) the image to be used to operate the article functionally associated with the image, or
(2) the image of the result of the performance of the function of the article functionally associated with the image.

It means the completely abstract images are not protectable and the images must be functionally associated with articles to be protected.

Regarding the column of “article(s) to which the design is applied” in the application of the Image Design, the specific use of the image shall be stated. The revised Examination Guideline for Design listed "image for displaying information", "image for the operation to view the contents", "image for the transaction" and the like as appropriate description examples.

2. Architectural Design

With the amendment of the Design Law in 2019, Architectural Designs became protectable (Art. 2 Para.1).

The protectable architectures are required to be anchored on the land, and to be artificial structures.

Japan adopts a principle of one application for one design. However, in the case of Architectural Design, plural architectures are often designed simultaneously and applied for at the same time. For this nature of Architectural Design, the revised Examination Guideline for Design states that designs of plural architectures can be deemed to be one Architectural Design if the architectures are for one specific use or function and have a common aesthetic impression.

In addition, the Architectural Designs may include auxiliary articles such as tiles, doors, windows, gates, stones, plants, etc. According to the revised Examination Guideline for Design, what is permanently fixed to the architecture(s) or the land constitute parts of the Architectural Design. Contrarily, objects that are temporarily placed around the architecture(s) or that can be moved arbitrarily do not constitute parts of the Architectural Design. Therefore, an Architectural Design including objects temporarily or movably placed around the architecture will be rejected under the principle of one application for one design.

3. Interior Design

Since to the Revision of the Design Law in 2019, Interior Designs have been protectable (Art. 8^bis). Here, the Interior Design refers to a design relating to the article(s), structure(s), and image(s) that constitute facilities or decorations (hereinafter referred to as “interior”) in a store, an office, or other facilities. When the interior gives a unified aesthetic impression as a whole, the interior can be registered as an Interior Design. The Interior Design is a design of a set of articles.

According to the revised Examination Guideline for Design, the Interior Design shall be a design of physically continued space. Therefore, the design of the interior which is divided by the wall or the like is not protectable.

An interior includes various articles by nature. To this point, the revised Examination Guideline for Design listed "restaurant interior", "school classroom interior", and "airport terminal lobby interior" as appropriate descriptions of the column of “article(s) to which the design is applied” in the application of the Interior Design. That is, in the application of the Interior Design, the particular use of the interior should be stated clearly.

As for the revision of the Japanese Design Law in 2019, please visit the following JPO website:

https://www.jpo.go.jp/e/resources/report/sonota-info/document/pamphlet/isho_kaisei_en.pdf

The U.S. Supreme Court held that a photographer cannot bring a copyright infringement suit against the State of North Carolina because it has sovereign immunity.  Allen v. Cooper, 140 S.Ct. 994 (2020), https://www.supremecourt.gov/opinions/19pdf/18-877_dc8f.pdf.  The Court determined that the Copyright Remedy Clarification Act (CRCA), which purports to permit such suits, is unconstitutional.

As the Court observed, this case is a tale of piracy, old and new.  Blackbeard's flagship, Queen Anne's Revenge, sank off the coast of North Carolina in 1718.  A marine salvage company (Intersal) discovered the shipwreck nearly 300 years later.  Under U.S. law, the wreck belongs to the State, which retained Intersal to conduct recovery operations.  Intersal hired Frederick Allen to take photos and video, and he registered his copyrights in those works.  When the State published them without his permission, Allen brought suit in federal court for copyright infringement.

The State moved to dismiss the case on the ground of sovereign immunity.  In general, federal courts cannot hear suits brought by individuals against non-consenting States.  The Eleventh Amendment of the Constitution prohibits suit against a State by a citizen of another State; and courts have long understood this rule to apply to citizens of the same State as well.  However, such sovereign immunity does not apply when Congress has enacted "unequivocal statutory language" abrogating the States' immunity if it has the constitutional authority to do.

In 1990, Congress passed the CRCA, which provides that a State "shall not be immune . . . from suit in Federal Court" for copyright infringement; and that it shall be liable and subject to remedies "in the same manner and to the same extent as" a private party.  Allen argued that this created an exception to sovereign immunity so that his case could go forward.  The Supreme Court ruled in favor of the State and struck down the CRCA.  Although Congress' intent to remove States' immunity "could not [be] any clearer," the Court found that Congress did not have the constitutional authority to pass such a law.

Allen argued that Congress was so authorized by the Intellectual Property Clause of the Constitution, which enables Congress to grant copyrights and patents, but the Court disagreed.  It found that "the power to 'secure' an intellectual property owner's 'exclusive Right' … stops when it runs into sovereign immunity."

Allen further argued that Congress was authorized under the Fourteenth Amendment, which empowers Congress to "enforce" the Due Process Clause, that is, no State may "deprive any person of life, liberty, or property, without due process of law."  The court noted that the Fourteenth Amendment "fundamentally altered the balance of state and federal power that the original Constitution and the Eleventh Amendment struck."  Nonetheless, the Court found that it did not authorize the CRCA.  A proper abrogation statute under the Fourteenth Amendment must be tailored to protect the particular right that is guaranteed.  Although copyright is a form of "property," the Court found that allowing Congress to abrogate sovereign immunity for copyright infringement was not "congruent and proportionate" to the Fourteenth Amendment injury it seeks to remedy.  The Court indicated that it might feel differently based on evidence of "widespread" infringement or "wholesale violation of the copyright laws" by the States; but the evidence of constitutional injury was "exceedingly slight."

Justice Kagan, delivering the opinion of the Court, noted that its decision would not prevent Congress from passing a valid copyright abrogation law in the future, properly tailored to redress unconstitutional injuries.

In an earlier case, Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, the Court held that the Patent Remedy Act – a similar statute stripping states of sovereign immunity from patent suits – was unconstitutional.  Under the principle of stare decisis, the Court relied heavily on Florida Prepaid to come reach the same conclusion as to the CRCA.

Although the Court's decision in favor of the State was unanimous, Justice Thomas and Justice Breyer each wrote concurring opinions expressing their respective views on stare decision, which may have implications far outside the IP context.