COMMUNITY DESIGNS

Januar 2003

On December 12, 2001 the Council of Ministers of the European Union adopted the Community Design Regulation (Regulation (EC) No. 6/2002). This Regulation opens the door for a rather strong design protection since the requirements for protection and the scope of protection are very clearly defined.

The Community Design Regulation (CDR) is valid without further ado in all 15 Member States of the EU (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, and the United Kingdom) and provides for two types of design protection:

• the unregistered Community design and
• the registered Community design

The main differences are set out in the attached table.

Concerning the registered Community design, as of now it is already possible to file Community design applications, but all applications filed before April 1, 2003 will receive April 1, 2003 as the filing date.

In the following, we will briefly set out the main points of the registered Community design:

Where to apply?

An application for a registered Community design can be filed with the Office for Harmonization in the Internal Market (OHIM) in Alicante, Spain, in any EU language (an official language of OHIM has to be indicated as the second language, namely English, French, German, Italian or Spanish).
Who may apply?

Any natural or legal person from any country in the world. Applicants from outside the EU must have representation. As European Trademark and Design Attorneys, we are authorized to represent you directly before OHIM.
What to apply for?

A Communitiy design is defined as 'the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation' (Art. 3 (a) CDR). In an application for a registered Community design several designs may be combined if the designs belong to the same class of the Locarno classification for industrial designs.
Conditions for protection

The protection of a design (if registered or unregistered) is subject to the condition that it has novelty and individual character:

• Novelty means that on the starting date of protection no identical design has been made available to the public; designs are deemed to be identical if their features differ only in immaterial details (Art. 5 CDR).

• A Community design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the starting date of protection (Art. 6 CDR).
What about the scope of protection?

The scope of protection of a Community shall include any design which does not produce a different overall impression on the informed user (Art. 10 (1) CDR).
How long does a Community design registration last?

The duration of protection is 25 years subject to the payment of renewal fees in five year increments.
The registration procedure

After receipt of the application OHIM carries out an examination as to formalities (but no substantive examination). If the formal requirements are met, the application proceeds to registration in the Community Designs Register. The registered Community design is then published in the Community Designs Bulletin if deferment of publication has not been claimed.
What are the main advantages of a Community design?

• One single application according to one law before one office (covering 15 countries);
• rather low costs for a design protection in 15 countries (appr. 750 EUR for one application);
• fast procedure; registration within a few weeks;
• protection against any identical or similar design;
• most likely: automatic extension as of May 1, 2004 to the 10 new EU Member States: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic, Slovenia.
Please do not hesitate to let us know if you wish to receive further information. We would be pleased to assist you in filing applications for Community design registrations.
BETTEN & RESCH

Registered and Unregistered Community Design

Formalities	NONE	application and registration
Office	NONE	OHIM, Alicante, Spain - as with Community trademarks
Protection starting on	date of disclosure of the design to the public within the EU (e.g. marketing, publicity, or sales)	after registration as of application or priority date
Duration of protection	3 years	25 years (upon renewal)
Level of protection	against deliberate copying	exclusive right; against deliberate copying and against independent development of an identical or similar design
Available as of	March 6, 2002	April 1, 2003 (applications may already be filed as of January 1, 2003 but receive the filing date of April 1, 2003)
Priority claim	NONE	applications can claim priority of design applications with a filing date of October 1, 2002 or later
Costs	NONE	EUR 750,-- (official fee for registration and publication for one design, including our charges)
Representatives	NONE	as European Trademark and Design Attorneys, BETTEN & RESCH is authorized to represent you directly before OHIM

BETTEN & RESCH

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