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© Patents Office 2007 The Unregistered Design Right - the baby grows up! Paul Sheridan Irish Patents Office
© Patents Office 2008 Birth of a new EU IP Right! Unregistered Community Design Right was officially born on the stroke of midnight on 6 th March 2002.
© Patents Office 2008 COUNCIL REGULATION (EC) No 6/2002 of 12 December 2001 on Community designs. A unified system for obtaining a Community design to which uniform protection is given with uniform effect throughout the entire territory of the Community Two forms of protection, one being a short- term unregistered design and the other being a longer term registered design.
© Patents Office 2008 The Unregistered Community Design Right A design shall be protected: by an unregistered Community design, if made available to the public in the manner provided for in this Regulation (Article 1(2)(a)).
© Patents Office 2008 The Unregistered Community Design Right Must be new (not previously available). Must have individual character.
© Patents Office 2008 The Unregistered Community Design Right Scope includes: any design which does not make a different overall impression on the informed user. Protection for a period of three years from the date on which the design was first made available to the public within the Community.
© Patents Office 2008 The Unregistered Community Design Right While both registered and unregistered design rights confer on the right holder a right to exclusive use, an unregistered design right only permits the right holder to prevent use which results from copying the design.
© Patents Office 2008 The Unregistered Community Design Right Very quiet infancy. Particularly suitable form of rights protection for industries (such as the fashion industry) where the life of a design is of a short duration High turnover of goods Protection by registration not necessary
© Patents Office 2008 The Unregistered Community Design Right Little or no case law. Until 2007 when:
© Patents Office 2008 The Unregistered Community Design Right Fashion designer Karen Millen (KM) alleged that Dunnes Stores (Dunnes) had copied two shirts and a knit top from her collection and had manufactured these for sale. Dunnes did not deny copying KMs designs at trial. As the design right was not registered, KM had to establish a valid unregistered design right to prove that the Dunnes clothes were unauthorised copies. Discovery suggested that Dunnes bought and copied KM Products
© Patents Office 2008 What Do You Think?
© Patents Office 2008 Depending on the design, the notional "informed user" varies in each individual case. The High Court opined that in this case, the informed user was "a woman with a keen sense of fashion, a good knowledge of designs of womens tops and shirts previously available to the public, alert to design and with a basic understanding of any functional or technical limitations on designs for womens tops and shirts".
© Patents Office 2008 The Unregistered Community Design Right Findings KM tops were compared to earlier designs: – clearly made a different overall impression – so KM designs had individual character Dunnes tops were compared with KM designs: – gave same overall impression – were considered to be within the scope of the unregistered design right. Judge found Dunnes had infringed the designs rights of KM
© Patents Office 2008 The Unregistered Community Design Right Judgement under appeal to Supreme Court. KM/Mosaic –two further cases against Dunnes. KM is seeking an account of the profits made by Dunnes from selling the clothes. KM/Mosaic pursued this case on a matter of principle to protect the integrity of our designs and the creations of our talented designers. intention of Mosaic Fashions to make a substantial donation to an Irish charity once monies are recovered.
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