Community design right
A new Community unregistered design right, covering the whole of the European Community, became available from 6 March 2002 .
How are Community
design rights obtained?
Unlike UK design right, Community unregistered
design right only comes into existence when
a new design is first made available to the
public within the European Community. A design
is made available to the public when it is
disclosed in any way. A disclosure does
not take place unless the disclosure could
not reasonably have become known to those working
in the field concerned within the European
Community. It is always best to make
any disclosure under the terms of a confidentiality
agreement.
In order to gain Community design right, it is not necessary to register the right with the Community design office in Alicante, Spain. That said, anyone wanting to rely on this new right is best advised to keep detailed and careful records of when, where and by whom the design was created, as this may be required when the right is to be enforced.
Community unregistered design rights last for 3 years from the date on which the design is first made available to the public within the European Community.
What designs are covered
by Community design right provisions?
If a design is new and of "individual character",
and as long as the aspect of design is not
specifically excluded, the external appearance
of the product (including the design's contours,
colours, shape, texture and/or materials or
its ornamentation) it can be protected. The
design right can be applied to any product.
However, a design right protects only the appearance
of a product or a part of a product. Designs
which relate only to the function of the product
are to be excluded from Community design right
and you are advised to seek patent protection
for such features.
Included in the exclusions from Community design right are features which allow a product to fit (or interconnect) with another product.
Most other designs are included in this new right.
Who owns a Community
design right?
The creator of a design owns any Community
design right in it, unless he/she created the
design in the course of employment. In
this case the right passes automatically to
the employer, although the creator has the
right to be named as the designer.
Where and how is Community
unregistered design right enforced?
Community rights are enforced by bringing legal
proceedings in a national court of law. This
might be in the Member State in which the infringement
occurred. Specific rules govern where an action
may be brought and you are advised to consult
Brand Protect for such advice.
A claimant can request a judge to give a court order preventing further infringement of the Community design right. If the claimant is successful at trial he could be awarded damages and other remedies.
It is important to remember that an unregistered design right is only infringed by copying. A design created independently, however similar to your design, is not usually regarded as an infringement of your design.
Can unregistered design
rights be used commercially?
Community design right is an important asset
to any organisation and can be used to generate
revenue by licensing the design and by buying
or selling it. Products bearing the design
can be blocked by Customs and Excise from entering
the EU.