Industrial design rights in the European Union

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Industrial design rights in the European Union are protected by a double system of national and Union-wide protection.

Contents

[edit] Eligible designs

A design is defined as "the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation". Designs may be protected if:

  • they are novel, that is if no identical design has been made available to the public;
  • they have individual character, that is the "informed user" would find it different from other designs which are available to the public.

Where a design forms part of a more complex product, the novelty and individual character of the design are judged on the part of the design which is visible during normal use.

Designs are not protected insofar as their appearance is wholly determined by their technical function, or by the need to interconnect with other products to perform a technical function (the "must-fit" exception). However modular systems such as Lego or Mechano may be protected.

[edit] Community designs

The system of Community designs became operational on 2003-04-01. A single registration ensures protection across all Member States. The legal basis is provided by the Regulation on Community designs (No 6/2002),[1] and the system is operated by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Alicante, Spain. The detailed rules for applications and procedures for registration are contained in Commission Regulation (EC) No 2245/2002,[2] while the fees are specified in Commission Regulation (EC) No 2246/2002:[3] as of October 2006, the registration and (obligatory) publication of a Community design costs €350 in fees to the OHIM for the first five years of protection. Protection is renewable by five year periods up to a maximum of 25 years.

The Regulation on Community designs also provides for an unregistered design right lasting for three years after a design is made available to the public. This is intended for industries which produce a large number of designs with a relatively short market life (para. 16 of the preamble to the Regulation). Protection is assured across all Member States, but the rightholder must show that actual copying has occurred and not an innocent, independent work of creation [Art. 19(2)].

[edit] National laws

National systems of registered designs remain in place alongside the system of Community designs: registration in a small number of countries is cheaper than Community registration, and may be more appropriate for smaller manufacturers. National laws are harmonized by the Directive on the legal protection of designs (98/71/EC):[4] the criteria for eligibility and the duration of protection are the same as for registered Community designs. Many Member States also protect unregistered design rights under their national law, but these are not covered by the Directive.

[edit] International treaties

The protection of industrial design rights is required by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS, Arts. 25 & 26), to which the European Union is a party.[5] The Regulation on Community designs provides for the recognition of the priority date of an application for design right registration in a country which is either a member of the World Trade Organization or a party to the Paris Convention for the Protection of Industrial Property.

The European Commission has proposed that the European Union become a party to the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs:[6] as of September 2006, only twelve Member States (plus Iceland and Liechtenstein in the European Economic Area) are parties to the Hague Agreement, and only Hungary, Slovenia and Spain have ratified the Geneva Act.[7]

[edit] Spare parts used for repair

The protection of "component parts of complex products", in particular spare pars for cars, was left to Member States' discretion in Directive 98/71/EC, given the divergence of practices and opinions. As required by that Directive, the European Commission has conducted research on the question, which found that spare parts such as wings and bumpers were 6.4–10.3% more expensive in countries where these part were protected by industrial design rights compared with countries where no such protection existed:[8] it has proposed that the design right protection on these parts be abolished throughout the European Union.[9]

[edit] See also

[edit] References

  1. ↑  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs
  2. ↑  Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs
  3. ↑  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
  4. ↑  Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs
  5. ↑  Council Decision (of 22 December 1994) concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994)
  6. ↑  Proposal for a Council Decision approving the accession of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs, adopted in Geneva on 2 July 1999
  7. ↑  Parties to the Hague Agreement Concerning the International Registration of Industrial Designs as of 2006-08-07.
  8. ↑ 
  9. ↑  Commission proposal for an amendment to the Directive 98/71/EC

[edit] External links

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