Rights conferred by the Community design (art. 19 of the Regulation)
Comments by: Paweł Wrześniewski
COUNCIL REGULATION (EC) No 6/2002 of 12 December 2001 on Community designs
***
Art. 19
RIGHTS CONFERRED BY THE COMMUNITY DESIGN
***
1. A registered Community design shall confer on its holder the exclusive right to use it and to prevent any third party not having his consent from using it. The aforementioned use shall cover, in particular, the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes.
2. An unregistered Community design shall, however, confer on its holder the right to prevent the acts referred to in paragraph 1 only if the contested use results from copying the protected design. The contested use shall not be deemed to result from copying the protected design if it results from an independent work of creation bya designer who may be reasonably thought not to be familiar with the design made available to the public by the holder.
3. Paragraph 2 shall also apply to a registered Community design subject to deferment of publication as long as the relevant entries in the register and the file have not been made available to the public in accordance with Article 50(4).
There are registered and unregistered Community designs. Article 10 of 6/2002 Regulation is only one example the registered design gives its holder much better protection.
Remember the scope of the protection conferred by a Community design shall include any design which does not produce on the informed user a different overall impression. In other words by registering a Community design you receive protection of this exact design and all similar ones as well.
Exclusive rights mentioned in art. 19 shall will not last for very long however. Unregistered Community design shall be protected for a period of three years (see article 11) and registered Community design for a period of five years (with possibility to renew the protection).
It is easy to understand this 'resulting from copying the protected design' is very difficult to prove in the court of law. Again, conclusion is quite obvious: better register earlier than have trouble later.
The rights conferred by a Community design shall not extend however to acts relating to a product in which a design included within the scope of protection of the Community design is incorporated or to which it is applied, when the product has been put on the market in the Community by the holder of the Community design or with his consent (see article 21).
[last update: 27th of May 2020]