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MEMO/03/77

Brussels, 1st April 2003

Industrial property: Registration of "Community Designs" from 1 April 2003 - frequently asked questions

The Office for Harmonisation in the Internal Market (OHIM) in Alicante will register Community designs as from 1st April 2003, under the EU's new Community system for the protection of designs. This system has been set up under a Regulation adopted by the EU's Council of Ministers on 12 December 2001, after a proposal from the European Commission. The registration procedure is simple and inexpensive. Unregistered designs will also be protected.

What are the objectives of the new system?

To reduce legal obstacles to the circulation of design goods within the Internal Market and to ensure fair competition in this respect.

The system will foster creativity and innovation by making it easier to protect designs throughout the Internal Market with a single application. It will also help fight counterfeiting and piracy.

How does the system work?

Community Designs registered by the OHIM will enjoy protection in all fifteen Member States.

Procedural burdens on applicants will be kept to a minimum: in particular, there will be no need for designs submitted to undergo, before registration is granted, a detailed examination in order to ensure they qualify for protection.

Instead, the OHIM will be able to annul non-qualifying registrations after invalidity proceedings.

Member States' Community design courts will also be able to decide, if appropriate, that a registered design should not in fact be entitled to protection, following a counterclaim for a declaration of invalidity in the context of litigation arising from an alleged infringement of that protection.

Exactly what protection is conferred by the registration of a design?

Holders of registered designs will have exclusive rights to use the design concerned and to prevent any third party from using it anywhere within the European Union. They will be protected against both deliberate copying and the independent development of a similar design

How long wills this protection last?

For up to 25 years. Registrations will need to be renewed every five years up to that maximum.

What is the cost of registering designs?

The basic registration fee for a first design will be € 230, with lower fees for any further design registered at the same time. Renewals will cost € 90 for a first renewal up to € 180 for a maximum fourth renewal.

A full table of costs is annexed.

What criteria must a design meet to be eligible for protection?

To be eligible for protection, designs must be new and must have an individual character. In other words it must be apparent to the public that they are different from products which existed previously.

What about unregistered designs? Will there be any protection at EU level for them?

Yes. Unregistered designs must meet the same criteria as registered ones - they must be new and have an individual character - in order to enjoy protection.

This protection will be applicable from the date of disclosure of designs to the public within the European Union. That disclosure may occur through designs going on sale or through prior marketing or publicity. The relevant designs will be protected for three years.

The main difference in the level of protection afforded will be that a Registered Community Design will be protected against both deliberate copying and the independent development of a similar design. An unregistered design will be protected only against deliberate copying.

How long will it be before designs can be registered in practice?

Designs can be registered as of now. In order to get the system up and running immediately, the OHIM has been accepting pre-applications since 2 January 2003.

Can companies still register designs under national law?

Companies will still be able to choose to register designs under national law, as national design protection, as harmonised by the Design Protection Directive (98/71/EC, see below), will continue to exist in parallel with Community design protection.

How much will all this cost the taxpayer?

The aim is that fee revenue will enable the OHIM to cover the costs it incurs in setting up and managing the system.

What is the historical background to the introduction of the Community Design system?

Since 1993, when it brought forward its first proposal on the EU-wide protection of designs, the Commission has viewed this as a high priority.

The first step was achieved in 1998, with the adoption of the Directive on Design Protection (98/71/EC) harmonising the main rules governing designs registered in the Member States.

However, until now, designs have had to be registered separately in every individual Member State where protection was sought. This means there has continued to be a potential obstacle to the free movement of those products which incorporate designs, which are the subject of national rights, held in different countries by different entities.

In order to remove this barrier to the efficient working of the Internal Market, the Regulation on Community Designs was adopted by the Council on 12 December 2001 (see IP/01/1803), after a proposal from the Commission in June 1999 (see IP/99/407). This amended the earlier proposal from 1993, in order to ensure compatibility with the Directive.

The Commission then adopted on 22 October 2002 a Regulation of its own giving the OHIM the administrative tools it needed to operate the system, such as the registration and cancellation of designs and the procedure for appeals (see IP/02/1535).

Finally, a second Commission Regulation adopted on 19 December 2002 set the fees payable for the registration of Community Designs (see IP/02/1926).

Are there any types of design, which are not covered by the Community Design system?

Component parts not visible once incorporated into complex products, designs dictated by function of the product - for example certain parts of a shaver which must have a certain shape in order to work - and "must-fit" parts of complex products, for example electrical or other interconnections (with the exception of connections in modular systems such as lego) will not be protected under the Community Design.

Furthermore, in line with Directive 98/71, designs which constitute a component part of a complex product will not be protected when used for the purpose of repairing that complex product so as to restore its original appearance. The Commission intends to make parallel proposals to amend the spare parts provisions of both the Directive and the Regulation, in 2004.

What is the relationship with the Community trademark system?

The procedures for applying for registration of Community Designs are aligned as closely as possible with those set up for registering Community Trade Marks under the equivalent Commission Regulation adopted in 1995. This is to ensure that the registration procedures dealt with by the OHIM are as coherent and convenient as possible for future users of the system.

Where can I get more information and detailed instructions on how to register a design?

The full text of the Regulation is available at:

http://ec.europa.eu/internal_market/en/indprop/design/index.htm

Further practical details are available on the OHIM website at:

http://ohim.europa.eu/

Fees for the registration of Community Designs

Reason for Fee

FeeAdditional fee (designs 2-10 each)Additional fee (designs 11+ each)
Registration€230€115€50
Publication€120€60€30
Deferred Publication€40€20€10
Late Payment Registration€60
Late Payment Publication€30
Late Payment Deferment€10
Late Payment Additional Designs25% of additional fee
Renewal (first)€90
Renewal (second)€120
Renewal (third)€150
Renewal (fourth)€180
Late Renewal25% of late fee
Invalidity Application€350
Appeal€800
Restitution in integrum€200
Transfer Application€200 (max €1000)
Transfer Design
Licence Registration
Licence Cancellation
Copy of Application, Certificate or Extract (uncertified)€10
Copy of Application, Certificate or Extract (certified)€30
Inspection of Files€30
Copy of file

(uncertified)

€10 + €1 per page over 10
Copy of file

(certified)

€30 + €1 per page over 10
Communication of File€10 + €1 per page over 10
Review of Refund€100

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