Unregistered Community Designs – Could A Reference To CJEU Save London Fashion Week?

Unregistered Community designs (UCDs) became available in 2002 via the Community Designs Regulation as a new kind of short term protection (3 years) across the EU, aimed at providing protection for designs where either the market was moving too fast for it to be worth registering the design, as is often the case in the fashion industry, or simply to provide automatic and free protection whilst the decision whether or not to spend the money on registration was made. However certain aspects of how designs qualify for UCD protection still remain uncertain:

In order to qualify for an unregistered Community design right, does the first publication of the design have to be within the geographical confines of the Community (EU) or just somewhere those working in the EU would see it (such as an international trade fair)? What is the date for fixing novelty of an UCD - the date that the right came into being (as per the first question) or the date that it reasonably became known to the circles specialised in the sector concerned, operating within the EU? These questions (paraphrased here but set out in full below) were referred to the CJEU last month in Beverly Hills Teddy Bear Company v PMS International Group plc [2019] EWHC 2419 (IPEC) by Mr Justice Hacon, who was keen to have the issue referred while the UK courts still have that power (pre-Brexit).

The potential impact of Brexit

The answer will have significant implications for the UK design and fashion industry in particular if the strict geographical confines requirement aspect for qualification for UCD is confirmed by the CJEU since the UK may soon be outside the EU. In making his reference, Hacon J observed that were he to decide this issue without making a reference to the CJEU, a later appellate court may be prevented from making such reference after Brexit. The position regarding UK references to the CJEU which are pending following Brexit day remains unclear, but assuming the CJEU does provide a response, its answers are likely to be of great interest to designers.

The decision could have a significant impact on the UK design and fashion industry and the exhibition and marketing practices in particular for those businesses, UK-based or otherwise, who usually rely on UCDs for protection and would not get this right if first exhibiting or marketing a design in the UK post-Brexit if the strict geographical interpretation is followed or in relation to novelty.

The UK does have a similar...