The Community Design (RCD) System

Council Regulation (EC) nº 6/2002 of 12 December 2001 on Community Designs (OJEC N° L3 of , p 1) Commission Regulation (EC) nº2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs The Legal Framework (OJEC N° L341 of , p 28)

Commission Regulation (EC) nº 2246/2002 of 16 December 2002 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) in respect of the registration of Community designs (OJEC N° L341 of , p 54)

Entry into Force 6 March 2002 Administrative Board of O.H.I.M. decided on 18 November 2002: first Filing date 01/04/2003, applications received as from 01/01/2003

“design” means the appearance of the whole or a part of a product resulting from the features of, in particular, the... linescolourstexture contours materials ornamentation shape What is a design?

What is a Product ? “Product”: any industrial or handicraft item, including inter alia –Parts intended to be assembled into a complex product –Packaging –Get-up –Graphic symbols –Typographic typefaces Excluded: computer programs

If no identical design has been made available to the public –before the UCD has first been made available to the public –before the filing or priority date of the RCD Designs are deemed to be identical if their features differ only in immaterial details Protection Requirements: Novelty (Art. 5)

If the overall impression produced on the informed user differs from the overall impression of designs made available to the public earlier The degree of freedom of the designer in developing the design will be taken into consideration Protection Requirements: Individual character (Art. 6)

Exclusion of protection Non visible parts in normal use Features of appearance of a product which are solely dictated by the technical function of the design Interconnections (Art 4 (2) ) (Art 8 (1) ) (Art 8 (2) )

The Community Design : a two tier protection system The Unregistered Community Design (UCD) The Registered Community Design (RCD)

Beginning of protection for UCDs The UCD has been a reality since the 6th of March 2002 All new creations disclosed for the first time in the EU since this date are protected by that right throughout the European Union

Beginning of protection for RCDs The RCD has been a reality since the 1st of April 2003 Administrative Board of O.H.I.M. decided on 18 November 2002: first Filing date 01/04/2003, applications received as from 01/01/2003

Registered or Unregistered Community Design Unitary character (equal effect throughout the Community) Definitions (design, product, complex product) Protection requirements (novelty, individual character) Common elements

Registered or Unregistered Community Design Exclusion of protection (non visible parts, technical functions, interconnections, against public policy or morality) Common elements

Registered or Unregistered Community Design Birth of right –RCD  application for registration –UCD  making available to the public within the Community Term of protection –RCD  5 years renewable 4 times –UCD  3 years from disclosure Differences Max. 25 years

Registered or Unregistered Community Design RCD - exclusive right to use and prevent: making, offering, putting on the market, importing, exporting, using or stocking for such purposes, products incorporating the design UCD - right to prevent only if use results from copying Rights conferred: Differences (Art 19)

Unitary character CD has equal effect throughout the EU Registration, transfer, surrender, invalidity, prohibited use always for the entire EU (Art 1 (3) )

Unitary character & enlargement of the EU New Article 110a CDR Automatic extension of RCD’s and UCD’s (as from 1/5/2004) Grand’fathering of earlier CD’s (invalidity and examination on new grounds) Holder of earlier national rights in new Member States can prohibit use If first disclosure outside EU, no UCD

If first disclosure in non EU country, UCD not available because no grace period Uncertainty as to disclosure and therefore existence of right Problems of proof (date, extent, first disclosure, etc) Right only against “copies” Limited term of 3 years Weaknesses of the UCD

A strong right with a unitary character in the entire EU Easy, fast and cheap filing and registration procedure (one language, one application, one fee system; multiple applications, deferred publication) Community exhaustion Grace period (12 months) Long term of protection (up to 25 years) Advantages of the RCD

The Registered Community Design and OHIM

How to obtain a registration of your design at the OHIM

Any natural or legal person without any restrictions as to nationality or state of incorporation Right vests in the designer or his successor in title Joint ownership Designs developed by employees Who can file Who has the right

Where to file ? With the national offices Directly to OHIM

Mail Room Mail Dispatch Examination Registration PublicationDeferment Community Design Workflow

Mainly formalities elements provided in application priorities professional representative Grounds for non-acceptance not a design application against public policy and morality Examination (Art 45)

_____________________________ Procedure should be fast and user-friendly No examination on : verification of protection requirements relative grounds whether spare part or not whether the applicant is entitled Examination

Multiple designs allowed in one application, provided products are in the same class (except ornamentation) Features –No upper limit for number of designs –Saves costs for applicant –In case of multiple classes, invitation to divide –Each design included will have its own independent life (deferred or not, invalidity, surrender, renewal, etc …) Multiple Applications (Art 37)

A multiple application (class 06)

Not a multiple application

To be requested when application is filed Maximum 30 months as from filing or priority date Deferment may be interrupted at any time by the applicant May file a specimen if it is a two dimensional design Except for very limited information, the designs remain secret until holder decides to publish Deferred publication (Art 50)

Publication of a deferred design

Country of origin Figures

Classification Figures Classes

class 09 : Packaging class 12 : Transport or hoisting class 06 : Furnishing class 07 : Household goods class 14 : Recording and communication equipment Industries

average number of designs in a multiple application = 6,15 Figures

Some examples of designs already registered by OHIM since 1 April 2003 Source: OHIM’s CD Bulletin

Casio Computer Company Filed, registered and published on 01/04/2003 First RCD published

DaimlerChrysler AG Filed, registered and published on 01/04/2003

Design 393-1, registered for KOIPE CORPORACIÓN, S.L. Design , registered for SILHOUETTE International Schmied AG First RCDs published

Design 989-4, registered for Intel Corporation Design , registered for AUTOBAR PACKAGING SPAIN, S.A. Barbera del Valles

Table of Fees

Application with immediate publication (1 CD) Application with deferment publication (1 CD) 350 € 270 € Examples:

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