Opti 2020 – Legal Questions surrounding Glasses, Lenses and Frames

Last weekend I visited OPTI 2020. This is a trade fair for optometrists or rather for ophthalmic optics & design. It is primarily aimed at trade visitors, but they are nice enough to also let the general public in.
Once you´re there, you are regulary addressed by exhibitors who want to show you their (whole) collection. And when they learn that you are an attorney, there sometimes develops a discussion about legal questions surrounding optometrists and their business in general.

Let me shed some light on some of those legal questions:

1. Intellectual Property Rights in Prescription Glasses

How much „law“ is there in prescription glasses?

 a) Patents

If you think about prescription glasses or the hinges of frames for instance, you will see that there is in fact a lot of technology in them. Technical inventions can be protected by patents. Take those ophthalmic lenses that automatically get dark when hit by light; I think they call them photochromic. Those are surely protected by a patent. The same is probably true for those flexible hinges on the frames. – But these are questions for patent attorneys.

 b) Design Patents

The ordinary person pays more attention to the frames of spectacles, that is their design. As for that, it can be protected by a design patent in Germany and/or on the European level as well as in other countries around the world. Originally, we called it „Geschmacksmuster“ in Germany, but now we use the much more modern term „design“ or „registered design“.

In order for a design to be eligible for legal protection, it has to be new and it has to show „individual character“ („Eigenart“). A design has  individual character,  § 2 para. 3 of the German Act on the Legal Protection of Designs states, if the overall impression it produces on the informed user differs from the overall impression of any design which has been disclosed prior to the date of filing of the application. In assessing individual character, the degree of freedom of the designer in developing the design will be taken into consideration. Features of appearance which are solely dictated by their technical function are excluded from design protection.

So the decisive question in that context is: How does the informed user perceive a particular design? Does its overall impression sufficiently differ from an already existing design? – Interesting question that can probably only be answered on a case by case basis.

c) No legal protection for an idea as such

Mere ideas as such can not be legally protected, as you may know. So for instance the idea or concept of frames with different clips (sun, driving, office and so on) can in my opinion be copied by anyone.

d) Brand Names, Trademarks

Of course there is trademark protection for brands like Oliver Peoples, Garrett Leight, Gucci, Prada or Giorgio Armani. Those brand names (trademarks) may only be used by the owner or licensee on their products.

2. Sales Contracts, Distribution or Franchise Agreements

From a legal point of view, it is also interesting to take a look at how the distribution of (prescription) glasses is organised. This concerns the contracts between producers and distributors, namely optometrists. Let us dwell on that for a moment.
 
a) Sales and distribution agreements may have different arrangements. Some manufacturers will offer the optometrist their collections with the option to return any unsold glasses after a certain time. There may also be a prolongation of the payment term. Pricing is often a topic (illegal resale price fixing versus allowed recommended retail prices for branded goods). Other topics (in distribution agreements) may include: Sales territory, minimum sales, term and termination, and so on - just to name a few.

b) In a franchise agreement, the franchisor will provide the whole distribution or business concept, including the shopfitting. The franchisee will be allowed (and required) to use the established brand name (and/or trademark). The brand marketing will often be taken care of by the franchisor, with the costs being ultimately shared by the franchisees. – Well, there are specialised and more detailed articles on the legal aspects of franchising of course.

3. (Other) Legal Issues the Individual Optometrist has to deal with

a) Company Law

If the optometrist carries out his business in the legal form of a „GmbH“ (or other legal entity), there will be the usual company law related problems, such as controversies among shareholders over management power and the distribution of profits, or general questions concerning the formation and later maybe liquidation (insolvency) of the company.

More often than not, such controversies are better addressed through mediation than in a court battle.

 b) Employment Law

If the business employs personnel, you will have to deal with the legal issues of  hiring, employment contracts, warnings („Abmahnungen“), vacation time, and sometimes also terminations. - Well, just as in any other business.

 c) Commercial leases

Usually, the optometrist will conduct his business in a rented space. As a result, there will be the usual questions concerning commercial lease agreements.

So here you have it, our overview of legal issues in the field of ophthalmic optics and design.
 
Dr. Wolfgang Gottwald
Attorney at Law

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