The course is an introduction to the protections of design, i.e. the appearance of a product.
Foremost is the Community design, created by Regulation (EC) 6/2002 (the “Regulation”). The Regulation provides for a new regime that is unitary (having equal effect throughout the EU), two-tier (combining unregistered Community design (“UCD”) and registered Community design (“RCD”), with common and different features) and cumulative (with other rights, primarily copyright).
Discussed features of the Community design shall include:
- subject-matter of the protection and exclusions,
- requirements for protection (especially novelty and individual character assessed against the informed user),
- commencement (first disclosure within the Community for UCD or filing with OHIM for RCD) and term (3 years for UCD and up to 25 years for RCD),
- ownership and dealings,
- scope of protection and exclusive rights,
- exceptions as well as invalidity and infringement proceedings (especially pan-European jurisdiction in certain cases).
Infringements proceedings are handled by Community Design Courts, i.e. designated national courts acting as Community courts; thus, the case-law on Community design is European in character.
The Community design coexists with national or regional (Benelux) design rights, as harmonised by Directive 98/71/EC, which shall be briefly addressed.
The Community design may be cumulated with other rights, primarily national copyrights, and also (Community or national) trademarks. Their respective regimes shall be compared.
Thus, design protections involve at least three strategic parameters:
- one material (which rights for which subject-matter?);
- one temporal (which commencement and term?); and,
- one territorial (which adjudicatory jurisdiction for which substantive protection?).
The course will end with a discussion on the strategic use of the various available protection mechanisms.