Designs in the European Union
Every product has its own features such as lines, contours, colors, shape, texture and materials used, or its ornamentation. The design of a product is very important and can be protected by registering it as a Registered Community Design (RCD) in the European Union. This way the owner of the design has the exclusive right to use it and to prevent any third party not having his consent from using it. It is very beneficial to protect a design as a RCD for companies who are doing business in several Member States.
Not only registered Community designs, but also unregistered designs have protection when they are disclosed in the European Union. Unlike registered designs, unregistered Community designs provide a more limited scope of rights – they only protect against copying. Even an identical work cannot infringe an unregistered Community design if it was independently created.
The most important requirement for a community design is to have ‘individual character’. Every design that is created has protection, as long as it has ‘individual character’. This means that the overall impression of the design must be different to the ‘informed consumer’ than designs made previously made available to the public. The ‘informed user’ was not defined in the EU regulation. In the PepsiCo case the European Court of Justice has established an approach to the ‘informed user’. The ECJ stated that the informed user possesses a certain degree of knowledge with regard to the features which those designs normally include and shows a relatively high degree of attention when he uses them.
In a recent case the ECJ established an approach on the burden of proof of the ‘individual character’. It stated that in order for a court to treat an unregistered Community design as valid, the right holder of that design is not required to prove that it has individual character, but only needs to indicate what constitutes the individual character of that design. This makes the position of an owner of an unregistered Community design quite strong. Nevertheless, the position is not as strong as if he would have a registered Community design, since the scope of rights is very limited and only protects against copying.
The owner of a registered Community design has the possibility to file claims for the destruction of the goods that are infringing the design. The European Court of Justice stated that the resolution should be understood in a way that these claims are governed by the law of the Member State in which the acts of infringement or threatened infringement have been committed, including its private international law. So when starting this procedure of destruction of infringing goods, also national law should be taken into account.
The European Court of Justice also explained what is meant by the notion ‘prevent any third party from using the design’ in the regulation. According to the ECJ a third party can also be a holder of a later registered Community design. This means that when your design is registered in the Community, it is widely protected.
In the end it pays off to have a registered Community design, because the protection is very wide. The position of an owner of a registered Community design is much stronger than the position of someone who has an unregistered Community design. An unregistered Community design lasts for a period of 3 years from the date on which the design was first made available to the public within the Community. A registered Community design lasts for up to 25 years from the date on which an application for registration was filed, subject to the payment of maintenance fees.