The degree of freedom of the designer of the industrial design

The article is devoted to the study of the essence of the concept of the degree of freedom of the designer of an industrial design in the context of such a criterion of the protectionability of an industrial design as an individual character. The Law of Ukraine «On Protection of Rights to Industrial Designs» has been analyzed for the purpose of defining the concept of «designer’s degree of freedom». It has been established that the domestic law does not contain a broad explanation of the mentioned concept. It has been found that some additional information regarding the understanding of the concept of «designer’s degree of freedom» is contained in such a secondary legal act as the recently approved Rules for drawing up and submitting an application for an industrial design and conducting an examination of an application for an industrial design and international registration of an industrial design. It has been analysed the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their member states, on the other hand, as well as Directive 98/71/EC of the European Parliament and the Council of October 13, 1998 on legal protection industrial designs and Council Regulation (EC) No. 6/2002 of December 12, 2001 on Community industrial designs, the provisions of which were implemented in 2020 into the Law of Ukraine «On the Protection of Industrial Design Rights». It has been established that the above-mentioned international legal acts do not provide a deep interpretation of the concept of the designer’s degree of freedom. Separate foreign and international court cases have been considered, in which the designer’s degree of freedom in specific practical cases has been analyzed in detail. It has been clarified and illustrated with real examples the specific importance of the degree of freedom of the designer for the individual character of an industrial design. On the basis of domestic legislation, international legal acts, foreign and international judicial practice, own conclusions have been drawn regarding the understanding of the concept of the degree of freedom of the author of an industrial design. It has been established under which circumstances the degree of freedom of the designer cannot be limited. It has been concluded that the requirements for the differences of the designed product from others, which make an impression on the informed user, depend on the lower or higher degree of freedom of the designer.