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1.2 What is a product? 1.3 Why a Community design? 1.4 Why protect your designs? 1.5 What is the difference in the scope of protection of a registered Community Design (RCD) and an unregistered Community design (UCD)? 1.6 What are the differences between a registered and an unregistered Community design? 1.7 How long is a CD valid for? 1.8 What are the advantages of a registered Community design compared with national protection schemes? 1.9 How does the cost of the Community design compare with other systems? 1.10 When should you apply for protection? 1.11 What was available before the UCD and RCD? 1.12 Can a design be registered individually in each Member State if protection throughout the whole EU is not sought? 1.13 What does 'degree of freedom of the designer in developing his design' mean? 1.14 Is the material (e.g. wood or metal) used for a product protectable through the Community design system? 1.15 What is a “component part of a complex product”? 1.16 What is a modular system whose protection may be sought under Article 8(3) of the Community Designs Regulation? 1.17 How can a modular system be distinguished from a design of interconnections whose protection is refused under Article 8(2)? 1.18 What is the difference between a 3D CTM and a design? 1.19 What is the difference between the protection offered by a 3D mark and that offered by a design? 1.20 What is the difference between a patent and a design? 1.21 What is a utility model? 1.22 Must a registered Community design be published? 1.23 What is the grace period 1.24 Can I talk to other people about my design? 1.25 Can an applicant have a national design registration and then apply for a registered Community design? 1.26 What is the difference between the Community design system and the Hague system? The outward appearance of a product or part of it, resulting from the lines, contours, colours, shape, texture, materials and/or its ornamentation.
1.3.
Why a Community design? The Community design has equal effect throughout the Community. The OHIM only deals with applications for registered Community designs, since an unregistered Community design requires no filing.
1.4. Why protect your designs?
1.5.
What is the difference in the scope of protection of a registered Community Design (RCD) and an unregistered Community design (UCD)? The rights conferred, however, differ because the RCD gives an exclusive right to use and prevent making, offering, putting on the market, importing, exporting, using or stocking for such purposes, products incorporating the design, which do not produce a different overall impression. The UCD constitutes a right to prevent the commercial use of the design only if the use results from copying. Consequently, if the design has been created independently by a second designer (in other words, that designer shows that he/she was not aware of the existence of the protected design), there is no infringement.
1.6. What are the differences between a registered and an unregistered Community design?
Unlike a registered Community design, you do not have to file an application to protect an unregistered design. This simplicity does, however, have its downside because in practice the holder of the UCD may encounter serious problems proving that the protection exists
1.7. How long is a CD valid for? An RCD initially has a life of five years from the filing date and can be renewed in blocks of five years up to a maximum of 25 years whereas the UCD grants a right of three years from the date of the first disclosure that must have taken place within EU territory.
1.9. How does the cost of the Community design compare with other systems? The fees for registering and publishing one design are €350 for five years' protection. The system is “fee-decreasing” which means that in a multiple application, the fees for the second to 10 th design will be 50% of the basic fee each and less than 25% of the basic fee for the 11 th design onwards.
1.10. When should you apply for protection? It is advisable to do so as swiftly as possible. However, a grace period allows you to market your product during the 12-month period preceding the date of filing a design without destroying its novelty. In other words, the fact that you disclosed a new design before you filed an application does not render your registration invalid due to lack of novelty.
1.11. What was available before the UCD and RCD? Before the introduction of the Regulation on Community designs, only the Benelux countries ( Belgium , Luxembourg and the Netherlands ) had a unified design protection law. In all other European Union Member States, protection of designs was through national legislation, which meant a separate application in each country and the protection was then limited to the territory of that country.
1.12. Can a design be registered individually in each Member State if protection throughout the whole EU is not sought? Yes, individual Member States will continue to offer national design protection and Belgium , the Netherlands and Luxembourg will continue to have a common system of protection for designs in the Benelux .
1.13. What does 'degree of freedom of the designer in developing his design' mean? Designers' freedom when creating can vary greatly from one product to another. The freedom is, however, not to be measured by the absence of leeway from a subjective point of view (e.g. the fact that the person who orders the designs requires that some features appear in them) but from an objective one. Thus sectors in which prior art (i.e. all pre-existing creations) is crowded or in which standardisation imposes many constraints will be considered to leave little freedom to designers.
1.14. Is the material (e.g. wood or metal) used for a product protectable through the Community design system? No it is not possible to protect a specific material by a Community design. It is the appearance of the product to which the design is applied that is protected, and the fact that a product is made of wood may add something to this outward appearance. The right conferred will not grant the exclusive right to manufacture a specific product in wood, competitors would be allowed to manufacture their product in wood if their design meets the requirements of novelty and "individual character".
1.15. What is a “component part of a complex product”? This includes such things as parts of cars, wing mirrors, bumpers, bonnets, lights. If they are visible during their normal use, these are not excluded from registration but they will have a limited protection. It will be possible to produce and sell these parts specifically for repair of an original product without infringing the registered Community design. If they are not visible in the normal use of the complex product, they will not be excluded from protection through registration as the OHIM does not conduct any substantive examination before registration but they will not have the legal effects of a Community design, even if registered.
1.16. What is a modular system whose protection may be sought under Article 8(3) of the Community Designs Regulation? A modular system consists of a number of items that are designed to be connected together in a number of ways. The typical example of a modular system is the building blocks or tiles used by children. This notion is also of particular relevance to the furniture industry as it includes items such as desks and tables, which may consist of a number of smaller tables that can be assembled in alternative configurations.
1.17. How can a modular system be distinguished from a design of interconnections whose protection is refused under Article 8(2)? Interconnections refer to the feature of a product which enables that product to be assembled or to be mechanically connected with another product, e.g. the connection for a plug or an exhaust pipe would necessarily be of a specific “form and dimension” in order to fit with a car. This will not usually include the possibility of alternative configurations as in the case of a modular system. Applications for registrations of “Interconnections” will not be excluded from protection through registration as the OHIM does not conduct any substantive examination before registration but they will not have the legal effects of a Community design even if registered.
1.18. What is the difference between a 3D CTM and a design? It is possible to obtain both forms of protection. It is possible for example to protect packaging as both a CTM and RCD if they meet the corresponding legal requirements: a novel shape becomes synonymous with a company's goods and may then be registered as a trade mark as well as being protected by a Community design on the grounds of its individual character and novelty.
1.19.
What is the difference between the protection offered by a 3D mark and that offered by a design? Registration as a three dimensional trade mark protects the distinctiveness of the sign compared to the other existing signs in use for the same products or services, whereas a design protects the novelty and the individual character of a product.
A new or very unusual or original shape will not be registered as a CTM if it does not comply with the condition of being distinctive as regards the products or services which have been applied for. A product with a design that has been marketed for years before the application for registration will be registered but could be invalidated by any interested third party because of its lack of novelty. Indeed, the characteristic of novelty does not apply to trade marks and the characteristic of distinctiveness does not apply to designs. A trade mark has no time limit (it can be renewed indefinitely for periods of ten years) whereas a registered Community design has a maximum of 25 years' duration from the date of application for registration.
1.20. What is the difference between a patent and a design? A patent covers the function, operation or construction of a new creation. To be patentable, a function must be innovative, have an industrial application and be described in such a fashion that a man of the art is capable of reproducing the process. A design covers the appearance only of a product. A design cannot protect the function of a product. If protecting a product with both a patent and a design registration (i.e. a new product can perfectly include both new functions and a new appearance), the timing of the applications will be crucial, as it must be ensured that the publishing of one or other of the rights does not destroy the novelty of the other application.
1.21. What is a utility model? A utility model is an exclusive right granted for an invention similar to a patent. It is sometimes referred to as a petty patent or an innovation patent. It may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, compositions of matter, or any new useful improvement thereof.
1.22.
Must a registered Community design be published? Publication may be delayed for up to 30 months and your product can therefore be kept confidential until you are ready to disclose it. You may even choose not to publish it at all and your registration will then lapse after the 30 month period.
1.23. What is the grace period? A designer (or subsequent owner of a design) can apply for protection up to a year after he first discloses a design, without his own disclosures counting against the registration. In other words, the novelty of the design will not be destroyed for one year after disclosure. This allows a proprietor the opportunity to determine whether seeking protection for a design is likely to be worth the money and time required. It suffers the drawback of leaving legal uncertainty for third parties as to whether a design is going to be registered. However, this is for a relatively short period during which competitors would not be free to copy the design anyway because of the unregistered right offered by the Regulation on Community designs. This is particularly useful for small businesses since they frequently lack the money to finance systematic registration of designs, which may or may not be successful on the market.
1.24. Can I talk to other people about my design? Yes, but you should always be prudent. The person to whom you have shown your design might try to register a similar one before you do and you would then be in a weak position as it is the creator of the original design that has to prove that his/her design has been copied, which is always difficult.
1.25. Can an applicant have a national design registration and then apply for a registered Community design? Yes, of course, provided you respect the grace period of one year, i.e. you file at EU level within one year of the disclosure of the national design. Also, if the national design application was filed less than six months earlier, then it is possible to claim the priority of that earlier application within the RCD application (see page 2 of the application form).
1.26. What is the difference between the Community design system and the Hague system? The Community design is a unitary system wherein one application provides design protection throughout the European Union. The right has equal value in all the Member States. The Hague Agreement is an international system, which confers national protection by filing a single application with the World Intellectual Property Organization. Within this application the States in which protection is sought must be designated. This system is applicable in some of the current and potential future EU Member States and in some other non-EU countries, in total more than 40 countries.
The main difference is that the Community design grants one right in the whole territory of the EU whereas the Hague Agreement gives the possibility to file via one centralised application several national design applications for several design rights.
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