A design encapsulates a product"s appearance; its shape, its pattern, its colour. Registering a design serves to protect the design itself as well as the work put into it from counterfeiting. We at the commercial law firm GRP Rainer Rechtsanw?lte note that in order for a design to be registered it needs to be distinct from other designs that are already well-known. The General Court of the European Union recently upheld a declaration of invalidity with respect to the registration of a design because it had already been made available to the public prior to its registration (Az.: T-651/16).
According to a regulation of the European Union, a Community design is capable of being protected if it is new and has individual character. A design is deemed not to be new if, among other reasons, it was made publicly available prior to the 12 months preceding the date of priority claimed. An exception is that the relevant professional circles within the EU could not have been aware of it.
In the instant case, a US company had applied in November of 2004 to have a Community design registered for shoes and in doing so claimed priority from a patent application submitted in the USA on May 28, 2004.
In 2013, a French company applied to have the design declared invalid on the basis that it was not new. It argued that the design in question had already been made available to the public prior to May 28, 2003. As such, it was claimed that the design had been known to the public for more than the 12 months prior to the patent application. In 2016, the European Union Intellectual Property Office (EUIPO) declared the design invalid on account of its lack of novelty.
The EGC upheld the decision. It ruled that the design had been made available to the public prior to May 28, 2003. The Court went on to note that it was not necessary for the disclosure to have taken place within the EU.
A design is distinct from a protected trademark. It is possible for trademark rights to be violated even if there is merely the potential for confusion with the protected product. Lawyers who are experienced in the field of intellectual property law can offer advice.
GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.
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