The appearance of the whole or a part of a product resulting from the features of in particular lines, contours, shape, texture and/or materials of the products or its ornamentation (Art. 1(a) of the Design Directive), and visible parts of the object (Art. 3(3)(a) Design Directive). [1]
Registered community design should be differentiated from registered community designs In relation to registered community design you have to register them with EUIPO in Alicante. à 19(1) is scope of protection. Unregistered community design are automatic creations from the moment it was made available to the public, provided there is novelty and individual character (burden of proof is on the plaintiff). Unregistered Community Design is protected for 3 years Article 11) and 19(2) is scope of protection (it is less extensive than for registered community rights)
Prerequisite1: Individual Character
Individual character us stated under Article 5 of the Design Directive which in other words is the “General impression” or “overall impression” of the design should differ from the general impression of earlier designs that are made public. As per Art.10bis Paris Convention, what can be construed and generally speaking the product needs to be distinctive in the market and should not create confusion, or mislead.
“General impression” amounts to the impression the design makes on an informed user. “Informed user” is someone who would typically be in contact with the product (in between average user (as in the case of Trademarks) and man skilled in the art (as in the case of patent)).
Prerequisite 2: Novelty
As encapsulated under Articles 4 and 6 of the Design Directive and 5 and 7 of the Design Regulation i.e. no identical sign has been made available to the public (or with slight differences), available to the public or published or exhibited, used or disclosed, except where the events could not have been reasonable be known in the normal course of business to the specialized circles in the sector in the community (CJEU Case Grautsch))
Prerequisite 3: Grace Period
Stated in 6(2)(b) Design Directive, for the purpose of applying for a registered design, a 1 year retention of novelty after disclosure/ making available to the public. During the grace period it is protected as an unregistered Community Design, but 3 years for unregistered, yet this confers less protection as per Article 11.
An overlap here exists with Copyrights as it can be protected as a Copyright that is, as long as it is original. (see above under copyrights)
The originality requirement for designs protected as Copyrights is left to the Member states to decide as per Article 17 of the Design Directive.
Rationale:
Protection of ideas embodied in symbolic material and creative expression. Designs render objects more appealing to consumers and increase their marketability or commercial value. By providing a measure of protection against unlicensed imitations, design rights promote investments in proprietary designs that create value for both consumers and businesses. [2]
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