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The Community Design: European Union-Wide Protection for Your Design Portfolio, 1 Nw Northwestern Journal of Technology and Intellectual Property Volume 1 Article 2 Issue 1 Spring Spring 2003 The ommC unity Design: European Union-Wide Protection for Your Design Portfolio Christopher M. Aide Recommended Citation Christopher M. Aide, The Community Design: European Union-Wide Protection for Your Design Portfolio, 1 Nw. J. Tech. & Intell. Prop. 35 (2003). https://scholarlycommons.law.northwestern.edu/njtip/vol1/iss1/2 This Perspective is brought to you for free and open access by Northwestern Pritzker School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of Technology and Intellectual Property by an authorized editor of Northwestern Pritzker School of Law Scholarly Commons. Copyright 2003 by Northwestern University School of Law Volume 1, Issue 1 (Spring 2003) Northwestern Journal of Technology and Intellectual Property The Community Design: European Union-Wide Protection for Your Design Portfolio Christopher M. Aide∗ I. INTRODUCTION ¶1 There is a new and cost-effective form of intellectual property protection available for design portfolios (including those belonging to American and Canadian companies and individuals) that cover the entire European Union (“EU”) – the Community Design.1 The Community Design system arose from the Council Regulation (EC) No 6/2002 of December 12, 2001 on Community Designs (hereinafter “Regulation”). It is designed to create a uniform legal regime to protect industrial designs and creations across the EU. Such protection is vital for numerous key sectors of the economy, including -but not limited to- clothing, textiles, shoes, cars, jewelry, furniture, tableware, and ceramics. ¶2 Previously, gaining design protection across the EU involved navigating a patchwork of different types of national legislation for each of the current fifteen EU member states. The level and quality of protection this situation afforded varied greatly and resulted in a lack of legal security, which proved detrimental to investment.2 Although, the European Directive on the legal protection of designs3 requires EU member states to harmonize their design protection laws, until now obtaining protection was costly, because this Directive did not harmonize the procedure for obtaining protection it thereby required the filing of national applications to obtain registered protection. ¶3 The Regulation now makes EU-wide design protection cheap and simple to obtain. There are two forms of protection that the Regulation provides: the Unregistered Community Design (“UCD”) and the Registered Community Design (“RCD”). ¶4 Since March 6, 2002, qualifying designs have automatically had protection as UCDs across the EU. As of January 1, 2003, applications for RCDs, whose scope of ∗ Christopher M. Aide practices with the Intellectual Property Group of Baker & McKenzie’s Toronto office and is a partner in the firm’s Canadian offices. He was previously a member of the German and Austrian offices’ Intellectual Property Group in Frankfurt am Main, Germany from 1999-2003 and was also a partner in those offices. He is a barrister and solicitor in Ontario, Canada, as well as a solicitor in England & Wales. The author is indebted to his colleague, Ms. Jenni Rutter, of Baker & McKenzie’s London office, whose November 2002 Legal Briefing on the Community Design provided both content and motivation for this article. 1 The Community Design arose from the Council Regulation (EC) No 6/2002 of December 12, 2001 on Community Designs (“Regulation”), which was adopted on that date by the Council of the European Union, available at http://oami.eu.int/EN/design/pdf/reg2002_6.pdf (last visited Nov. 12, 2003). 2 Press Release, Office for Harmonization in the Internal Market, Trade Marks, and Designs CP/01/02 (Dec. 14, 2001) (Alicante, Spain), available at http://oami.eu.int/es/office/press/pdf/141201.pdf (last visited Nov. 12, 2003). 3 Directive 98/71/EC of European Parliament and of the Council of October 13, 1998 on the legal protection of designs, available at http://oami.eu.int/EN/design/propdir.htm (last visited Nov. 12, 2003). 35 NORTHWESTERN JOURNAL OF TECHNOLOGY AND INTELLECTUAL PROPERTY [2003 protection is considerably broader than that of UCDs, have been accepted by the same institution, that handles Community Trade Marks, namely, the Office of Harmonization in the Internal Market (“OHIM”). This is the case even though the RCD system did not officially go live until April 1, 2003. ¶5 This perspective is designed to provide a practical guide for business people and lawyers who are aware of, but not fully familiar with, the Community Design system to assist them in evaluating the advantages, options, and strategies available in registering and enforcing their own or their clients’ design rights under this system. ¶6 To provide such practical advice, this perspective begins with a summary of the differences between a UCD and an RCD and discusses when it may be appropriate to seek registered as opposed to unregistered protection for your designs. It follows with a discussion of the RCD registration process, as well as a summary of the means to declare an RCD invalid. This perspective then discusses enforcement, as well as assigning and licensing, of both a UCD and an RCD. Finally, a sample sheet for the technical specifications required for filing an RCD is provided to assist the reader in preparing and filing RCD applications. II. UCD VS. RCD A. UCD: Scope of Protection ¶7 As noted, since March 6, 2002, qualifying designs (i.e., designs for clothing, textiles, shoes, cars, jewelry, furniture, tableware and ceramics) automatically have protection as a UCD across the EU. However, UCD protection only lasts three years from the date the design was first disclosed. More specifically, the UCD right will come into existence automatically when the products incorporating the designs are made available to the public within the EU (i.e., if the design has been published, exhibited, used in trade or otherwise disclosed in such a way that it could reasonably have become known to those specialists in the sector concerned).4 ¶8 Also, a UCD is only infringed where the infringing junior design has been copied from the senior design. The applicant should be alert to the fact that the purported infringer of a UCD can defend by successfully arguing that the design he or she uses results from an independent creation. ¶9 Although a UCD provides limited protection, for certain industries that renew their design collections seasonally (e.g., the clothing or shoe industries), such UCD protection provides an initial important layer of protection across the EU against counterfeiting and other infringing copies without any formality or cost involved.5 ¶10 UCD protection may be entirely acceptable for a short-term design portfolio. The RCD, on the other hand, provides much broader and longer protection. The applicant’s new product designs that are intended to have a long shelf life could benefit greatly from the EU-wide protection an RCD provides. 4 Press Release, Office for Harmonization in the Internal Market, Trade Marks and Designs CP/01/02 (Dec. 14, 2001) (Alicante, Spain), available at http://oami.eu.int/es/office/press/pdf/141201.pdf (last visited Nov. 12, 2003). It is not entirely certain whether the date of first disclosure means first disclosed anywhere and thereby reasonably could have become known to the relevant public in the EU or first disclosed in the EU itself. That is a matter for clarification by either the courts or legislators. 5 Id. 36 Vol. 1:1] The Community Design B. RCD: Registration Benefits, Procedures and Costs 1. Key Benefits of an RCD ¶11 An RCD is quick, simple and cheap to register. RCD applications, as noted, could be filed with OHIM beginning January 1, 2003, even though the system did not officially go live until April 1, 2003. OHIM will not examine RCD applications except to make sure the design is in fact a design and does not offend public morality. OHIM anticipates that RCD applications not subject to objections and not deferred should be registered and subsequently published in the Community Designs Bulletin within a few months (considerably faster than is the case for Community Trade Marks to issue registration). The cost of obtaining registered protection will be a fraction of what it would cost to get national design registrations throughout the EU. ¶12 The wide definition of a design means that one can gain registered protection for logos, packaging, graphic symbols, typefaces, computer icons and other things as an RCD but not computer programs. An RCD for a single design could cover all classes of goods throughout the EU. The applicant can claim its RCD has been infringed even if the person infringing did not copy or know about the applicant’s RCD. EU-wide injunctions and damages will be available for infringement. A designer or owner of a design can disclose a new design to the public (e.g., to investors, or at a trade show) and still apply for an RCD up to twelve months later. This should only be a safety net. It will still be important to apply for an RCD promptly. The applicant can keep its design a secret from the market by deferring disclosure through publication of your RCD application for up to thirty months after it is filed or from the priority date, whichever is first. The applicant can also interrupt such deferment at any time and allow publication. The applicant must state that you are deferring publication of the RCD upon filing: a subsequent request for deferment will not be accepted by OHIM. Many different designs can be included in the same application (a “multiple application”). 2. Overlap Between RCDs and Registered Trademarks: Broadening Your Protection ¶13 Given the wide definition of a design under the Regulation,6 RCDs, which consist of graphic symbols (e.g., stylized words and logos), will overlap to an extent with registered trademarks.
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