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Community design

This Regulation establishes a unified system for obtaining a Community design covered by uniform protection in the internal market. The aim is to remove obstacles and sources of unfair competition at Community level. It also aims to encourage creativity and innovation by providing reliable, uniform protection throughout the European Union.

ACT

Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs. [See amending acts].

SUMMARY

The Regulation lays down a simple and inexpensive procedure for registering designs with the Office for Harmonisation in the Internal Market - an EU Agency based in Alicante.

The aim is to remove sources of competitive distortion at European level and to put an end to the legal uncertainty facing industry as a result of the differences in national legislation. The introduction of a Community design is also aimed at encouraging creativity and innovation by providing reliable and uniform protection throughout the EU.

The European system coexists with the national protection systems. Any issues not falling within the scope of the Regulation are covered by the national law of the Member State.

Scope

To qualify for protection, designs must be new and have an individual character (they must be different from existing products). Parts of complex products whose appearance determines the designs concerned (such as visible replacement parts in cars) will not be protected by this system. However, parts of other products which are visible during normal use of the product in which they are integrated may qualify for the protection provided by this Regulation.

Rights conferred by Community design

The right to the Community design is vested in the designer or his successor in title. The Regulation provides for two types of protection of designs directly applicable in each Member State, i.e.:

  • without any formalities, as an "unregistered Community design";
  • As a "registered Community design", if it is registered with the Office for Harmonisation in the Internal Market (OHIM).

The differences between the two types of protection

The characteristic feature of the protection granted to an unregistered Community design is that it is short-term: it is protected for a period of three years from the date on which the design was first made available to the public within the EU (the product was put on sale through marketing or prior publication measures). This form of protection may be useful in sectors which produce large quantities of designs intended for products which frequently have a short economic life. The provisions of the Regulation will thus allow them to qualify for a certain level of protection without having to go through a longer procedure.

In the case of the registered Community design, the protection is for a minimum of five years and a maximum of twenty-five years.

Moreover, the degree of protection conferred on registered designs differs from that conferred on unregistered designs. Registered designs are protected against both systematic copying and the independent development of similar designs, whereas unregistered designs are protected only against systematic copying.

A registered design thus benefits from more formal and more comprehensive legal certainty.

Moreover, the OHIM is not responsible for unregistered Community designs.

Limitation of the rights

The rights conferred by the Community design do not extend to acts done privately and for non-commercial purposes, to acts done for experimental purposes, and to acts of reproduction for teaching purposes, for example.

This Regulation does not apply to equipment on ships and aircraft registered in a third country when these temporarily enter the territory of the EU.

Implementation of the Regulation

The Office deals with implementation of the Regulation at European level.

The Member States designate one or more Community design courts of first and second instance responsible primarily for:

  • infringement actions and - if they are permitted by national law - actions in respect of threatened infringement;
  • actions for a declaration of invalidity of an unregistered Community design;
  • counterclaims for a declaration of invalidity of a Community design raised in connection with infringement actions.

Registration of a Community design

An application to register a Community design may be submitted to the Office, the central industrial property office of a Member State or, in the Benelux countries which already have a common design, to the Benelux Design Office. In all cases, the application is transmitted to the Office, which conducts a formal examination and, where applicable, grants the Community design to the applicant by entering it in the Community Design Register. The entry is then published by the Office in a bulletin open to the public. The applicant may request that publication be deferred for a period of 30 months from the date of filing in order to protect sensitive information.

Registration with the Office has been possible since 2003.

Licences

A Community design may be licensed for the whole or part of the Union. A licence may be exclusive or non-exclusive. The consent of the right-holder is essential.

Invalidity

A registered Community design may be declared invalid by the Office either following a direct application to the Office or by a Community Design Court on a counterclaim * in connection with an infringement action. Declaration of invalidity may be applied for particularly if:

  • the design does not meet the requirements laid down for a Community design;
  • the holder does not have a right to the Community design;
  • the design constitutes an improper use of a work protected under the copyright law of a Member State.

The Office or the Community Design Courts may declare a design invalid, in accordance with their powers, on the basis of a valid application setting out acceptable grounds. In certain cases, the design may be maintained in a modified form.

Surrender of a Community design

The right-holder may surrender a Community design in part or in its entirety. The Office and, where applicable, the licence holders, must be informed accordingly. The surrender is published by the Office.

Appeals

The decisions taken by the Office concerning registered designs are open to appeal before the Board of Appeal. Its decisions are also open to appeal before the Court of Justice of the European Union. It is possible to appeal to the Court of Justice in certain cases, particularly if it is felt that there has been a lack of competence, an infringement of the Treaty, or an infringement of this Regulation.

Penalties

The measures which may be taken in the event of infringement are set out in the Regulation. These include the prohibition of production and the seizure of the infringing products. The court in the Member State may also impose other penalties.

Procedural language

Applications for registration must be made in one of the official languages of the EU. Applicants must also specify a second language - which must be one of the working languages of the Office - that they will accept for possible use as the procedural language in dealings with the Office.

Background

The process of harmonising national legislation on the protection of designs was launched by Directive 98/71/EC. The Directive did not, however, provide for the creation of a Community design, given that it was still necessary to register the design in the Member States. This Regulation therefore introduces, for the first time, a uniform European system for the protection of designs.

Key terms used in the act
  • Counterclaim: Request made by a defendant against a party who has made a claim against him and before the same court.

REFERENCES

ActEntry into forceDeadline for transposition in the Member StatesOfficial Journal

Regulation (EC) No 6/2002

6.3.2002

-

OJ L 3, 5.1.2002.

Amending act(s)Entry into forceDeadline for transposition in the Member StatesOfficial Journal

Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded - Annex II: List referred to in Article 20 of the Act of Accession - 4. Company law - C. Industrial Property rights - III. Community Designs

1.5.2004

-

OJ L 236, 23.9.2003.

Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded - Annex III: List referred to in Article 16 of the Protocol: adaptations to acts adopted by the institutions - 1.Company Law - Industrial Property Rights - III. Community Designs

1.1.2007

-

OJ L 157, 21.6.2005.

Regulation (EC) No 1891/2006

1.1.2008

-

OJ L 386, 29.12.2006.

RELATED ACTS

International design registration system of the World Intellectual Property Organisation (WIPO)

Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (Text with EEA relevance) [OJ L 78 of 24.3.2009].

Council Decision 2006/954/EC of 18 December 2006 approving the accession of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs, adopted in Geneva on 2 July 1999 [Official Journal L 386 of 29.12.2006].

Implementing regulation

Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs [Official Journal L 341 of 17.12.2002].

Fees payable to the Office

Commission Regulation (EC) No 2246/2002 of 16 December 2002 on the fees payable to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in respect of the registration of Community designs [Official Journal L 341 of 17.12.2002].

Approximation of national legislation

Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs [Official Journal L 289 of 28.10.1998].
This Directive on the legal protection of designs aims at approximating national legislation on the protection of designs with a view to promoting innovation and eliminating the obstacles to free competition on the internal market.

Last updated: 04.07.2011
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