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Unregistered Community design

 










Disclosure is making a design available to the public in such a way that the interested circles operating within the European Union (EU) can reasonably be aware of the design. The date and means of disclosure are essential: it creates an unregistered Community design right, but can conversely destroy the novelty of a registered design if the latter is not applied for within 12 months of disclosure. Disclosure must take place within EU territory to create an unregistered Community design right.

This may be achieved through, for example, a printed review bearing a date, mass publicity, publication in a national IP office Bulletin, display at an international exhibition or a dated mailing to all trade associations of a given industrial sector.

Disclosure will not be taken into account if the design, after disclosure, is not known ‘in the normal course of business to the circles specialised in the sector concerned operating within the European Union’.

Consequently, the design must be known at least by the interested circles of the sector concerned within the European Union and the date of disclosure must be certain.

For more information, see the Guidelines, Examination of Design Invalidity Applications.

The date of the first disclosure is particularly important to avoid having to seek such proof later on in the event of legal proceedings. Therefore, every element of proof that the disclosure in itself has been made to the target — and has successfully reached it — should be usefully and safely kept.

Disclosure must give interested circles within the European Union the opportunity to be aware of the design. Disclosure in one Member State may be sufficient, provided that it is carried out in such a way that the interested circles of this industry within the European Union might become aware of the design. This should be sufficient to establish the unregistered Community right. Disclosure at international fairs within the European Union, for example, where all the interested circles from all the countries are present, should make the right’s inception less difficult to establish.

More information regarding disputes.

Protection for unregistered Community designs has been effective since 6 March 2002. Designs disclosed for the first time on or after this date will be protected. There is no protection for designs disclosed before this date.

Nationality cannot interfere in obtaining design protection in Europe. A design disclosed within the EU, in accordance with the conditions of protection and of disclosure, is a right that vests in the person (legal or natural) who has disclosed it regardless of the nationality of that person.

More information regarding disputes.

To defend their right or act against counterfeiting, an unregistered Community design holder must be able to provide the following to a third party in a court action.
  1. Proof of the date and place of the first disclosure of the design.
  2. Proof that the design refers to the disclosed design (with its main characteristic features and especially ones with ‘individual character’).
  3. Proof that the interested circles within the European Union could have been aware of the disclosure itself. The difficulty of proving the date and scope of disclosure should not be underestimated. It is inherent in the UCD system, which is otherwise an easy form of protection to achieve.
  4. Proof that the alleged counterfeiter has in fact copied the protected design.
For more information, see Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs.

Infringement actions are not dealt with by the EUIPO but by the Community design courts, which are designated by the Member States. If your design is copied, you must then sue the person who has infringed your right before one of these courts.

Find out more about registration to avoid this situation.

It is improper to speak of a conversion from one right to another. Both rights can exist in the same design.
It is, however, important to recall that the Regulation provides for a ‘grace period’ of 1 year, which allows you to test the market with the protection of an unregistered Community design (UCD) and then to register a registered Community design (RCD). The effect of the grace period is that you will not be considered to have destroyed the novelty of your design during this time.
If, however, you file your registered Community design (RCD) application more than 1 year after the first disclosure, your registered Community design (RCD) could be declared invalid later on.
It is, therefore, not possible to have the full 3 years of protection as an unregistered Community design (UCD) and then to file an application for an registered Community design (RCD), as the novelty requirement will not then have been met.

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 11-05-2018
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