Novelty - art. 5 - Community designs Regulation
Comments by: Paweł Wrześniewski
COUNCIL REGULATION (EC) No 6/2002 of 12 December 2001 on Community designs
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Art. 5
NOVELTY
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1. A design shall be considered to be new if no identical design has been made available to the public:
(a) in the case of an unregistered Community design, before the date on which the design for which protection is claimed has first been made available to the public;
(b) in the case of a registered Community design, before the date of filing of the application for registration of the design for which protection is claimed, or, if priority is claimed, the date of priority.
2. Designs shall be deemed to be identical if their features differ only in immaterial details.
Novelty is necessary to have design protected in EU. A design shall be protected by a Community design to the extent that it is new and has individual character.
To fully understand art. 5.1.b of 6/2002 regulation it has to be remembered earlier application is not always "first in the queue". A person who has duly filed an application for a design right or for a utility model in or for any State party to the Paris Convention for the Protection of Industrial Property, or to the Agreement establishing the World Trade Organisation, or his successors in title, shall enjoy, for the purpose of filing an application for a registered Community design in respect of the same design or utility model, a right of priority of six months from the date of filing of the first application. Please note, utility model as well. So not only applying for industrial design in your country will guarantee you a priority to register Community design in Alicante.
Here wording is a little bit different than this used later in the regulation when rights conferred by the Community design are defined. 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.
[last update: 24th of May 2020]