What it is designs of the EU regulation on community designs?
Article 3 (a) of the EU regulation on community designs:
(a) “Design” means the appearance of the whole or a part of a product resulting
from the features of, in particular, the lines, contours, colors, shape, texture and/or
materials of the product itself and/or its ornamentation;
What it is product ?
means any industrial or handicraft item, including inter alia parts
intended to be assembled into a complex product, packaging, get-up, graphic
symbols and typographic typefaces, but excluding computer programs;
What it is complex product?
means a product which is composed of multiple components
which can be replaced permitting disassembly and re-assembly of the product.
What kind of features that create a design can be?
A design is the appearance of the whole or a part of a product, resulting from its feature.
- lines
- colours
- Shapes
- textures
- Contours
- materials
- ornamentation
Examples of designs
- computer screen icons,
- graphical user interfaces,
- logos as the definition of a product
- and encompasses graphic symbols
- typefaces
- ornamentation
- set of products
- packaging
- appearance of whole product
- appearance of a part of the product
- appearance of a component part of the whole complex product which remains visible during normal use of such product,
Under article 25 (1)
TRIPS leaves Member States of WTO free to exclude industrial design protection for design dictated essentially by technical or functional considerations.
art. 8(1) EU Regulation on Community designs
- A Community design shall not subsist in features of appearance of a product which are solely
dictated by its technical function.
art. 7(1) EU Directive on the legal protection of designs
- A design right shall not subsist in features of appearance of a product which are solely dictated by its technical function.
«functional» a design which is mandatory to obtain a technical function
The first one considers «functional» a design which is mandatory to obtain a technical function, i.e. it is the only design that can be used to perform a given function. It is also known as the multiplicity-of-forms theory under which the “technical function” exclusion does not apply if the same result can also be obtained using another configuration.
«functional» a design which is dictated only by technical considerations
the second theory deems «functional» a design which is dictated only by technical considerations (i.e. has been developed with only technical considerations in mind), notwithstanding the availability of other shapes which can perform the same technical function It is also known as the causality theory under which the exclusion applies if the product is determined solely by its technical function, irrespective of the possible existence of design alternatives.
What it is Must match features?
Must match features of an article are «dependent upon the appearance of another article of which the article is intended by the designer to form an integral part» (art. 213 UK CDPA). In this case, there is no technical functionality at all. Instead, what comes into play is aesthetical functionality. A typical example of a «must match» design is the one of car body panels: the design of a bonnet or a door depends on the design of the entire car and, therefore, «must match» this latter design. As it might be expected, the problem with «must match designs» is that, if they were protected, the market of spare parts for a given product (e.g. a car) would be monopolized.
What it is «must fit designs»?
«must fit designs» do not receive protection in many countries, the situation is quite the opposite in respect of «must match designs». However, some national laws allows their registration but, at the same time, do not protect them against the production and use of spare parts. Since this is still a highly disputed issue, changes in the law of several countries in the near future may not be excluded.
Article 25 (1) of TRIPS
“It’s a requirement of all industrial design laws that protections through registration
shall be granted only to designs which are novel and/or original.”
- novelty
- originality
What it is a novelty?
meaning that novelty is judged by reference to designs published within a limited preceding period of time; or may relate to territory, meaning that novelty is judged by reference to all designs published within the relevant jurisdiction, as opposed to anywhere in the world; or may relate to means of expression, meaning that novelty is assessed by reference to written or tangible disclosures anywhere in the world and to oral disclosures only within the relevant jurisdiction.
What it is novelty under EU law?
Article 5 RCD : A design shall be considered to be new if no identical design has been made available to the
public:
What it is disclosure accordingly to EU law?
article 7 RCD
- For the purpose of applying Articles 5 and 6, a design shall be deemed to have been made
available to the public if it has been published following registration or otherwise, or exhibited,
used in trade or otherwise disclosed, before the date referred to in Articles 5(1)(a) and 6(1)(a) or
in Articles 5(1)(b) and 6(1)(b), as the case may be, except where these events could not
reasonably have become known in the normal course of business to the circles specialised in the
sector concerned, operating within the Community. The design shall not, however, be deemed to
have been made available to the public for the sole reason that it has been disclosed to a third
person under explicit or implicit conditions of confidentiality. - A disclosure shall not be taken into consideration for the purpose of applying Articles 5 and 6
and if a design for which protection is claimed under a registered Community design has been
made available to the public:
(a) by the designer, his successor in title, or a third person as a result of information provided or
action taken by the designer or his successor in title; and
(b) during the 12-month period preceding the date of filing of the application or, if a priority is
claimed, the date of priority. - Paragraph 2 shall also apply if the design has been made available to the public as a
consequence of an abuse in relation to the designer or his successor in title.
It means that the design will not be deemed to have been made available to the public if specialised circles within the EU in a given sector are unaware of the design or if only specialised circles outside the EU have knowledge of a particular design. This “safeguard clause” excludes from prior designs worldwide but obscure disclosures.
What conditions must be met to obtain industrial design protection?
Depending on the applicable laws, independently created industrial designs must fulfil some or all of the following criteria: novelty/originality.
The assessment of novelty and originality varies from country to country. In general, an industrial design is considered to be new or novel if it has not previously been disclosed to the public and it may be considered original if it significantly differs from known designs or combinations of known design features.
What it is grace period for novelty?
is available under the law (which may not be necessarily the case in every jurisdiction), disclosure of the design by the creator or a third person as a result of information provided or action taken by the creator of the design will not be taken into consideration as an obstacle to the registration of the design.
Where a grace period is provided, it will generally be of short duration, typically between six months and one year (e.g. the 12-month grace period provided for in art.
What it is originality?
- European Union law protects only designs which have an «individual character»
Who is informed user?
The informed user must be understood as lying somewhere between that of the average consumer, applicable in design matters, who need not have any specific knowledge and who, as a rule, makes no direct comparison between the design in conflict, and the sectoral expert, who is an expert with detailed technical expertise. Thus, the concept of the informed user may be understood as referring, not to a user of average attention, but to a particularly observant one, either because of his personal experience or his extensive knowledge of the sector in question.”
May a design of the arrangement of the interior of a hotel room be registered as a Community design?
Yes
May a computer screen icon be registered as a Community design?
Yes
May a work of art (e.g. a painting) be registered as a Community design?
Yes
Define design.
A broad definition can be found in Article 3 (a) of the EU regulation on community designs:
(a) “Design” means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation;
