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Design Law

Written by Michael Coyle on 23 August 2007

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A design may be protected as a Community Registered Design (a "CRD"). The legislation is contained

in Council Regulation (EC) No. 6/2002 of December 12, 2001 ("the Regulation"). In order to qualify
for protection a design must be new and have individual character. A design is new if no identical
design has been 'made available to the public' before the date of filing of the application for
the CRD (Article 5). Whether a design has individual character is also to be assessed by reference
to any design which has been 'made available to the public' before the date of filing the
application for the CRD (Article 6). Designs pre-dating the application for the CRD are usually
referred to as "prior art".

Article 7 provides:

"For the purpose of applying Articles 5 and 6, a design shall be deemed to have been made
available to the public if it has been published following registration or otherwise, or
exhibited, used in trade or otherwise disclosed, before [the date of filing of the application for
the CRD] except where these events could not reasonably have become known in the normal course of
business to the circles specialised in the sector concerned, operating within the Community. The
design shall not, however, be 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."

Community designs are of two kinds: registered designs and unregistered designs.

In the case of a registered design the protection can last for up to "a total term" of twenty five
years (Article 12).

In the case of an unregistered design the protection lasts for three years (Article 11). Second,
in the case of a registered design, the designer must apply for registration. If the design is
registered, protection runs from the date of application. In the case of an unregistered design,
there is no need to apply for anything. Protection runs from the time when the design is made
available to the public. Third, the scope of the protection conferred by a community design
(either registered or unregistered) includes "any design which does not produce on the informed
user a different overall impression" (Article 10). Fourth, the nature of the protection as between
registered designs and unregistered designs is very different. Article 19.1 of the Regulation
states:

"A registered Community design shall confer on its holder the exclusive right to use it and to
prevent any third party not having his consent from using it. The aforementioned use shall cover,
in particular, the making, offering, putting on the market, importing, exporting or using of a
product in which the design is incorporated or to which it is applied, or stocking such a product
for those purposes."

This right is in the nature of a monopoly. By contrast an unregistered design is only protected
against copying (Article 19.2).

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