European Community Designs Protect Industrial Designs That May Not Be Protected In The US And Elsewhere

European Council Regulation no. 6/2002 on community designs came into force on 6th March 2002, and provides design protection for types of industrial designs which might not necessarily be protectable in other jurisdictions, such as the US. Both registered and unregistered design protection exists and covers all countries which are EC member states.1 A registered design confers on the holder an exclusive right to use the design and prevent third parties from doing so, with no requirement to prove copying. Unlike a registered design, an unregistered design right does not confer an exclusive right on the holder because copying must be proven for infringement to be found.

The registration system is administered by the Office for Harmonization in the Internal Market (OHIM), acting in its capacity as the trademarks and designs registration office of the European Union. OHIM's website indicates that, to date, it has received applications for and registered around 460,000 designs and that the number processed annually is increasing at a rate of about 75,000 per year.

What is Protected?

A "design" is defined in the Regulation as the outward appearance of a whole product or part of it resulting from the features (in particular, the lines, contours, colours, shape, texture and/or materials) of the product itself and/or its ornamentation. A "product" is defined in the Regulation as any industrial or handicraft item, including parts of a more complex product, packaging, get-up, graphic, symbols and typographic typefaces. In addition to protecting three-dimensional products and patterns, items such as logos, computer icons and fictional characters may also be protected.

In order to be protected, the design must be "new and have individual character." This requirement is fulfilled 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". Thus, the available prior art is extremely important when determining validity of a registered design. The degree of freedom of the designer in developing the design is taken into consideration. The case law to date has determined that an "informed user" is a person who is technically capable and discriminatory, as opposed to an average consumer. Recent decisions have also suggested that the smaller the degree of design freedom, the more that minor differences between two designs are likely to be...