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.