The unregistered Community Design gets in force on March 6, 2002

26.02.2002

The Council Regulation No 6/2002 of December 12, 2001 on Community designs has been published in the Official Journal of January 5, 2002, therefore it will get in force on March 6, 2002.



The Council Regulation No 6/2002 of December 12, 2001 on Community designs has been published in the Official Journal of January 5, 2002, therefore it will get in force on March 6, 2002.This does not allow yet the filing of a Community design at the Office for Harmonization in the Internal Market (OHIM).However, the designs made available and which "could reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the Community" shall be protected for a 3-year period from their disclosure.It is important to underline the following points :- in order to be protected, the design should be made available to the public from March 6, 2002 ; there will be no retroactive effect.- the disclosure should be known by the European specialised circles, but it could be done outside the EC, for example through an international exhibition.- the disclosure done by a third person (not under confidentiality) starts the 3-year period.The conditions of validity of the unregistered design are the same as the ones of the registered Community design :the design shall be new at the date of the first disclosure (or of filing or priority for a registered design) and to have an individual character.NoveltyThe novelty is evaluated at the date of the first disclosure.The comparison with prior art has to be done design by design, and not by combining different designs.Individual characterThe overall impression that the design produces on the informed users shall differ from the overall impression produced by any design, registered or not, which could reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Community. The case-law will have to appreciate a disclosure known by the specialised circles.Article 6 of the Regulation specifies that "in assessing the scope of protection, the degree of freedom of the designer in developping his design shall be taken into consideration". It shall therefore be taken into account the freedom of the designer in a specific domain (according to standards or to the technical function of the goods for example) for evaluating the protection given by the design. For example, for geometrical patterns in the textile area, a small difference shall be protectable. According to preamble (14) of the Regulation, the nature of the product allows to define the degree of freedom or of autonomy given to the designer.Copyright and designThis Community design right which does not need any filing shall not be mistaken for a copyright that begins from the creation and not from the disclosure.Indeed, for some states as France, the protection by design right may be cumulated with the protection by copyright (which requires in France that the creation be original).Scope of the protectionThis new Community right shall be used in combination with the registered Community design right.Indeed, the disclosure by the author of a design invalidates the novelty of a registered design, except if the disclosure has been done within a 12-month period before the filing.Thus, the disclosure of a design may give an unregistered Community design right, but it may also invalidate a registered Community design right if the filing is done more than one year after the disclosure.In order to obtain a protection of more than 3 years, a design made available to European professionals on March 6, 2002, should be filed before March 6, 2003 as a registered Community design; the first Community design filing being expected for March or April 2003.