Similar criteria for subsistence apply to
unregistered Community designs to those of registered Community designs,
that is the unregistered Community design must be original and have
individual character in order to qualify for protection.
Protection is applicable from the date of disclosure of the design to the
public within the European union, where disclosure includes marketing,
publicly disclosing or sale of the design. Qualifying designs are protected
as unregistered European Community designs for a period of 3 years from the
date of disclosure.
The major difference in the extent of the protection given by a registered
Community design over that of an unregistered Community design is that the
registered Community design can protect against both copying and independent
creation of an identical/similar design. An unregistered Community design
will be protected against copying only.
MACIPO & ASSOCIATES advises frequently on the protection
of designs and on related copyright issues. We handle the filing and
prosecution of Registered Design applications in the UK, the European
Community and other overseas territories. We also advise in relation to the
rights applicable to unregistered designs in the European Community and the
Design protection is often of particular relevance in circumstances where
patent protection is not available or may not provide very effective
protection, and we are well-placed to advise on the relative strengths and
weaknesses of any available patent protection and design protection in such
With the changes in the registered design law in Europe effected in recent
years, it is now possible to register a wide range of types of design in
both the UK and the European Community. It may therefore be possible to
supplement copyright protection and/or trade mark protection in graphically
represented subject matter, by means of Registered Design Protection.
UNREGISTERED COMMUNITY DESIGNS
As with UK unregistered design right, unregistered
Community design protection attaches to the shape and configuration as
applied to a product. Unlike the UK right however, the Community version
also attaches to the appearance of a product resulting from the lines,
colors, texture and/or materials and/or from ornamentation and surface
decoration of a product.
Unregistered Community designs are not an absolute form of protection in
that, in order to successfully pursue an infringer, it is necessary to show
that the features of the design in question were copied. In comparison, for
a design which is protected by a formal Design registration, it is merely a
matter of considering the similarities between the design irrespective of
whether or not the alleged infringing design might have been created quite
independently from reference to the registered design.
An unregistered Community design does not require an application procedure
and has a term of three years from the date when the design was first made
available to the public in the Community. However, in order to qualify for
protection, the design must be novel in that it must differ from prior
designs by more than immaterial details, and must also have a so-called
individual character insofar as it should produce a different overall
impression from earlier designs on an informed user.
The right to an unregistered Community design belongs primarily to the
designer or his/her successors in title. Designs created by an employee
during the execution of his/her employment duties however can vest in the
employer. Unlike UK unregistered design right there are no qualification
requirements and so any party of any nationality can own an unregistered