Episode 30

This article explains the legal system. Legal systems are divided into case law and statutory law. Case law is also known as Anglo-American law. Statutory law is also known as civil law and has its origins in Roman law.
Case law systems are characterized by precedent binding, whereby decisions made in earlier court cases bind decisions made in later court cases.
The source of law in statutory systems is statutory law. judicial precedent complements statutory law and is not precedent binding.
Japan followed a case law system until the Edo period. When conducting trials at the magistrate's office, they would consult past court records and make decisions based on similar cases.
Many countries around the world were once colonized by European powers. After independence, such countries are susceptible to the influence of their former colonial masters as they modernize.
Japan has never been a colony, so when the Meiji government was building a new national system, it visited major European countries (Britain, France, and Germany) and, after independently selecting and rejecting the systems of each country, adopted a statutory law system. Japan is the only country in the world with such a history.
In Japan, a "judicial precedent" refers to a judgment that "contains legal opinions that should be applied to other cases" (Supreme Court, 1951 (A) No. 3474, Decision of the First Petty Bench, February 12, 1953, Criminal Cases, Vol. 7, No. 2, p. 211).
In Japan, "judicial precedent" is not binding, and "all judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the law" (Article 76, Paragraph 3 of the Constitution). "Judges shall follow their conscience, as stated in Article 76, Paragraph 3 of the Constitution, means that judges shall follow their own inner good sense and moral sense, without succumbing to external pressure or temptation, whether tangible or intangible" (Supreme Court, 1947 (Re) No. 337, Grand Bench Decision, November 17, 1948, Criminal Cases, Vol. 2, No. 12, p. 1565).

Episode 29

This article explains cross-border infringement of industrial property rights. First, it is necessary to clearly distinguish between trademark infringement and patent infringement.

– Regarding trademark infringement:

① The Joint Recommendation states that the use of a mark on the Internet constitutes use in a member state only if it has a commercial effect in that member state (Article 2 of the Joint Recommendation) (Sushizanmai Case: Intellectual Property High Court Case No. 10031, October 30, 2014).

② While a trademark owner is not required to assert or prove the occurrence of damages, it is sufficient to assert and prove the fact of infringement and the amount of compensation that would normally be paid, it is reasonable to interpret this as meaning that an infringer can avoid liability for damages by asserting and proving the impossibility of damages as a defense. (Kozosushi Case: Supreme Court, 1994 (O) No. 1102, March 11, 1997, Third Petty Bench, Minshu Vol. 51, No. 3, p. 1055)

– Regarding patent infringement:

① The construction of the infringing system through the distribution service is considered to be a part of the information processing process for providing the infringing services in Japan. The system includes terminals located in Japan, and the effects of the infringing inventions are naturally realized on those terminals. Therefore, the location of the server outside of Japan is of no particular significance in relation to the realization of those effects. (Dwango vs. FC2 Case: Supreme Court, 2023 (Ju) No. 2028, March 3, 2025, Second Petty Bench)

② In the case of patents, utility models, etc., the infringing products themselves have creative value. Since the infringing products utilize the patents, etc. in their performance, utility, etc., a portion of the sales of the infringing products necessarily corresponds to the consideration for the patents, etc. Furthermore, the sale of infringing products means that there is a demand for products that implement the patent, etc., and the fact that infringing products are being sold in the first place can be said to mean that there is a demand for the establishment of a license to the patent, etc. (Supreme Court Commentary on the Kozosushi Case, Civil Case, 1997 (Vol. 1), p. 370).

Episode 28

In Episode 27, we explained the division of roles between Copyright Act and Design Act when it comes to protecting images in virtual space. This time, we will compare the protection of applied art under Copyright Act and Design Act.
The Copyright Act states, "The enjoyment of moral rights and copyright shall not require any formal performance" (Article 17, Paragraph 2). This means that the enjoyment of moral rights and copyright does not require administrative procedures such as registration.
Therefore, the enjoyment of moral rights and copyright is determined by the court, a judicial body. A person claiming copyright infringement must first file a lawsuit, asserting and proving the existence of the copyright and their identity as the author, in order to have their claim recognized.
Regarding the application of the Copyright Act to applied art, the Intellectual Property High Court ruled, "In light of the provisions of Article 2, Paragraph 1, Item 1 of the Copyright Act, even in the case of applied art for practical purposes, if a portion possessing aesthetic qualities that are subject to aesthetic appreciation can be identified separately from the components necessary for practical purposes, it can be deemed objectively identical to a '(pure) work of art that is a creative expression of ideas or emotions,' which is clearly included in Article 2, Paragraph 1, Item 1, and therefore that portion should be protected as a work of art under Article 2, Paragraph 1, Item 1.
On the other hand, even in the case of applied art for practical purposes, if a portion possessing aesthetic qualities that are subject to aesthetic appreciation cannot be identified separately from the components necessary for practical purposes, it cannot be deemed objectively identical to a '(pure) work of art that is a creative expression of ideas or emotions,' which is included in Article 2, Paragraph 1, Item 1, and therefore should not be protected as a work under that paragraph." (Intellectual Property High Court Case 2013 (Ne) No. 10068, Judgment of August 28, 2014)
Furthermore, in copyright infringement lawsuits, "the reproduction of a work means the reproduction of something that relies on an existing work and is sufficient to make its content and form known" (Supreme Court, First Petty Bench, Case No. 324 of 1975 (O), September 7, 1978, Minshu Vol. 32, No. 6, p. 1145), so reliance must also be asserted, proven, and accepted.
In contrast, under the Design Act, which is an industrial property law, the Japan Patent Office, an administrative organ, will prove the enjoyment of rights. Proof of reliance is also not required.
For these reasons, design registration is a reliable way to adequately protect applied art, and as a result, it allows for protection at low cost.