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The Warsaw Voice » Law » April 16, 2008
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Designs: To Register or Not to Register
April 16, 2008   
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In a world of fast changing fads and fashions, where brands and designer goods can have a crucial impact on consumer choices, the protection of what might be perceived to be winning designs, may be of tangible financial significance to manufacturers.

In a world of fast changing fads and fashions, where brands and designer goods can have a crucial impact on consumer choices, the protection of what might be perceived to be winning designs, may be of tangible financial significance to manufacturers. There is more flexibility in the field of design protection than many people realize because registration is not an absolute necessity to ensure that the designs you use in the course of your trading activities are protected. Council Regulation No. 6/2002 of December 2001 on Community designs introduced uniform protection of two kinds of Community designs: registered in the Office of Harmonization for the Internal Market (OHIM) and unregistered Community designs.

Some industrial sectors (such as the toy industry, fashion and pottery) produce large numbers of designs for products that frequently have a short shelf life. For them, any sort of protection without the bother of registration formalities is an advantage and the duration of protection is of lesser significance. For others, the advantages of registration lie in the greater certainty it provides.

Hence, depending on your sector of industry, you may choose between two forms of protection, the short-term unregistered design and the longer-term registered design. Both kinds of Community designs are of uniform character with equal effect throughout the Community. Although unregistered Community designs were introduced to protect short-shelf-life designs from being imitated, this form of protection is not limited to that kind of design and you may decide which form of protection suits your needs best.

But, in the first place, what is a design? A design is what gives a whole product or a part of a product its characteristic features-in particular its lines, contours, colors, shape, texture and/or the materials of the product itself and/or its ornamentation. Designs are protected to the extent that they are new and of individual character.

The date of disclosure (crucial to an assessment of a product's novelty, individuality and origin, and the due period of protection of its design) is different for registered and unregistered Community designs. It is the date they were made available for the first time to the public (unregistered) and the date of filing the registration application, or, if priority is claimed, the date of priority (registered).

A design is considered to be new if no identical design (which means one whose features differ only in immaterial details) had been previously made available to the public-by way of publication, exhibition, utilization in the course of trading activities or otherwise made known in such a way that, in the normal course of business, the circles specializing in the sector concerned and operating within the Community could have reasonably expected to have become acquainted with them.

A design is of individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design that has been made available to the public.

An unregistered design is protected for a period of three years from the date on which the design was first made available to the public. With respect to registered designs, they are protected for five years starting from the date the application was filed, provided, of course, that it has been registered by the OHIM. After payment of additional fees, the holder of a registered design may have the term of protection renewed; such terms of protection can be extended for one or more periods of five years at a time, up to a total of 25 years from the date of the initial filing for registration.

The main difference between registered and unregistered Community designs lies in the rights they confer upon the holder. A holder of a registered Community design has an exclusive right to use a design in the course of their trading activities and to prevent any third party from using it without their consent. A holder of an unregistered Community design, on the other hand, is limited to the right to prevent the protected design from being copied. Hence, if another person conceived an identical or similar design independently, that is not by copying, the use of such an independently created design will not constitute an infringement of the rights of the unregistered design holder.

Ewa Kacperek, Katarzyna Peroń
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