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Basic Questions

 





















According to the definition given in the Community design regulation ‘design’ means 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.

For Community design protection, a design must be new and have an individual character.
There are two kinds of Community designs:
  • unregistered Community design; and
  • registered Community design.

Registered Community design is a design registered in the manner provided for in the Community design regulation. 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’. Find out whether your design qualifies for registration.

Unregistered Community design is a design, which complies with the requirements of the Community design regulation and which has been made available to the public by being published, exhibited, used in trade or otherwise disclosed in such a way that, in the normal course of business, these events could reasonably have become known to the circles specialised in the sector concerned, operating within the Community.
The design is not deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality.

The scope of protection is the same. Both have unitary character throughout the European Union and they have the same requirements for protection, such as novelty and individual character.
The rights granted, however, differ. RCDs entitle holders to exclusive rights to use, make, offer, put on the market, import, export or stock products incorporating the protected design, and to prevent others from doing so with products incorporating the protected design and that do not produce a different overall impression.
UCDs holders can only prevent others from using the design at a commercial level if the use results from copying. Consequently, there is no infringement if the design has been created independently by a second designer (who can prove not being aware of the existence of the protected design).

Further information regarding the concept behind design in the context of Intellectual Property (IP).

A registered Community design (RCD) grants exclusive rights covering the outward appearance of a product, or part of it, resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation. The fact that the right is registered confers on the design great certainty should infringement occur. An RCD is initially valid for 5 years from the filing date and can be renewed for 5‑year periods, up to a maximum of 25 years.
 
Further information on designs in the EU.

A registered Community design is initially valid for 5 years from the filing date and can be renewed for 5‑year periods, up to a maximum of 25 years, whereas an unregistered design only grants protection for 3 years from the date of its first public disclosure within the EU territory.

Further information on design registration validation period and how to apply.

Community designs use one single registration procedure, providing holders with strong and uniform protection in the 28 Member States of the European Union.
This means simplified formalities with:
  • a single application,
  • a single language of filing,
  • a single administrative centre,
  • a single file to be managed,
  • a single payment,
  • the possibility of filing multiple applications (i.e. to include several designs in one application, such as a whole range of similar products),
  • the possibility of keeping the design undisclosed for up to 30 months (so it is not revealed to competitors).
Having an RCD grants its holder the exclusive right to use it and to prevent any third party not having their consent from using it.

Further information on Community design advantages.

No. Specific materials cannot be protected by a Community design.
It is the appearance of the product to which the design is applied that is protected, although using specific materials such as wood may add something to this outward appearance.
The right conferred will not grant the exclusive right to manufacture a specific product in wood. Competitors would still be allowed to manufacture their product in wood if their design meets the requirements of novelty and individual character.

Examples of designs.
Design application criteria.

An example would be parts of cars such as wing mirrors, bumpers, bonnets or lights.
If they are visible during the normal use of a complex product, they are not necessarily excluded from registration but they will have limited protection. It is possible to produce and sell such registered components specifically to repair an original product without infringing the registered Community design. If they are not visible in normal use they will not be excluded from protection through registration, but they will not benefit from the legal protection accorded to Community designs as the EUIPO does not conduct any substantive examination before registration.

A modular system is a number of items that are designed to be connected in a number of ways. A typical example would be building blocks or tiles for children. This notion is also of particular relevance to the furniture industry as it includes items such as desks and tables, which may consist of a number of smaller tables that can be assembled in alternative configurations.

For further information, please consult:

Interconnections are product features that enable it to be assembled or mechanically connected with another product, for example a plug connection or an exhaust pipe. These need to have specific shapes and dimensions to fit with a car.
Interconnections don not usually include alternative configurations as in the case of modular systems.
Applications to register ‘interconnections’ will not be excluded from protection through registration, but they will not benefit from the legal protection accorded to a Community design as the EUIPO does not conduct any substantive examination before registration.

It is possible to obtain both forms of protection.
A Community design will be protected if it meets the legal requirements of novelty and individual character at the time of filing. The protection granted by a Community design extends to the lines, contours, colours, shape and/or texture of a product to which it is applied or that incorporates them.
A three-dimensional EU trade mark will be registered if the product itself is considered to be a sign that distinguishes the applicant’s goods from those of another person or undertaking in a similar business. The protection granted by an EU trade mark is related to the distinctiveness of the sign itself compared to identical reproductions and signs with visual, phonetic or conceptual similarities leading to a likelihood of confusion.
It is possible, for example, to protect packaging as both an EU trade mark and as a registered Community design if they meet the corresponding legal requirements: a novel shape becomes synonymous with a company’s goods/services and may then be registered as a trade mark, as well as being registered as a Community design on the grounds of its individual character and novelty.
 
See examples of 3D trade marks in the Guidelines, Part B, Examination, Section 2, Formalities, paragraph 9.3.
Further information on designs.

A shape trade mark registration protects the distinctiveness of the sign compared to the other existing signs in use for the same goods or services, whereas a design registration protects the novelty and the individual character of a product.
The characteristic of novelty does not apply to trade marks and the characteristic of distinctiveness does not apply to designs.
A trade mark has no time limit (it can be renewed indefinitely for periods of 10 years), whereas a registered Community design has a maximum of 25 years’ duration from the filing date.

A patent covers the function, operation or construction of an invention. A patent may be granted for any invention, in all fields of technology, provided that it is new, involves an inventive step and is susceptible of industrial application.
For more information about patents, please consult the European Patent Register.
A design only covers the appearance of a product. A design does not protect the function of a product.
When protecting a product with both a patent and a design registration (i.e. a new product can perfectly include both new functions and a new appearance), the timing of the applications will be crucial, as it must be ensured that the publishing of one or other of the rights does not preclude the finding of novelty for the other application.
 

A utility model is an exclusive right granted for an innovation. It is similar to a patent and is sometimes referred to as a ‘petty patent’ or an ‘innovation patent’. It may be granted to anyone who invents or discovers a new and useful machine, article of manufacture, composition of matter, or any new useful improvement thereof. Utility models do not exist in all EU Member States and utility model protection cannot be obtained at EU level.
 
Further information on the list of countries and regions that provide utility model protection.

Yes. However, publication may be delayed for up to 30 months keeping the product confidential until you are ready to disclose it. Should you choose not to publish the RCD at all, the registration will lapse after the 30‑month deferment period.
To publish a design after a period of deferment of publication, you must pay the relevant publication fees and, where necessary, submit the depiction of the design (if the application included a specimen) within 27 months of the filing or any priority date.
 
Further information regarding publishing your design.
Further information on fees and payments.
 

A designer (or subsequent owner of a design) can apply for protection up to a year after they first disclose a design, without their own disclosure being detrimental for registration. This is known as the ‘grace period’ (in other words, it is considered as novel for 1 year after disclosure). This gives proprietors the chance to determine whether it is worth their while to seek protection for a design or not. The drawback is the legal uncertainty for third parties as to whether a design is going to be registered. However, this is for a relatively short period, during which competitors are not free to copy the design due to the unregistered right provided for by the Community design regulation.
This is particularly useful for small businesses that frequently lack the resources to finance a systematic registration of designs that might not always be successful on the market.
 
Further information.

Yes, provided the grace period of 1 year is respected. In other words, an RCD application must be made within a year of the disclosure of the national design. Furthermore, if the first design application was filed less than 6 months before, it is possible to claim the priority right of that prior application with the RCD application.
 
Further information on design filing tips and best practices.

The DesignEuropa Awards celebrate excellence in design and design management about registered Community design (RCD) holders, whether they are individual right holders, small business or large enterprises.

Further information about the DesignEuropa Awards and how to apply.

The questions and answers provided on this page serve a purely informative purpose and are not a legal point of reference. Please consult the European Union Trade mark and Community Design Regulations or Trade mark / Design Guidelines for further details.

For more information about how the Office handles your personal data, please consult the Data Protection Statement.
 

Page last updated 14-03-2019
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