Requirements for Protection of Designs

Martin Schltelburg, BoA

11/04/2017
 This is not about case law.

This is not about formalities of design application and registration.

This is about substantive design law.

This is
- for those who wish to know some basics of design law
- for those who deal with design invalidity or enforcement
Requirements:
- It is a design
- It is new
- It has individual character
- It is not solely dictated by technical function
- It is not must fit
- It is not must match
- It does not offend morality and public policy
 Is it a design?

"design" means the appearance of the whole or a part of a product

(Art. 3(1)(a) CDR)

"product" means any industrial or handicraft item

(Art. 3(1)(b) CDR)
 Is it new?

A design shall be considered to be new if no identical design

has been made available to the public [prior]
(Art. 5 CDR)
 Is it new?

RCD 2118505-0002 Prior design

 Is it new?

RCD 2155887-0035 Prior design

 Does it have individual character?

A 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 [prior]
(Art. 5 CDR)
 Does it have individual character?

RCD 1788886-0001 prior design

 Does it have individual character?

RCD 1924341-0002 prior design

Is it solely dictated by technical function?

A Community design shall not subsist in features of

appearance of a product which are solely dictated by its
technical function.
(Art. 8(1) CDR)
 Is it solely dictated by technical function?

RCD 820618-0002 RCD 235247-0006

Is it solely dictated by technical function?

RCD 1603382-0001
 Is it must-fit?

A Community design shall not subsist in features of

appearance of a product which must necessarily be
reproduced in their exact form and dimensions in order to
permit the product in which the design is incorporated or to
which it is applied to be mechanically connected to or placed
in, around or against another product so that either product
may perform its function.
(Art. 8(1) CDR)
 Is it must-fit?

RCD 831789-0001
 Is it must-match?

A Community design shall not exist for a design which

constitutes a component part of a complex product used
within the meaning of Article 19(1) for the purpose of the
repair of that complex product so as to restore its original
appearance.
(Art. 110 CDR)
 Is it must-match?

RCD 831656-0001
 Does it offend public policy or morality?

A Community design shall not subsist in a design which is

contrary to public policy or to accepted principles of morality.
(Art. 9 CDR)
 Does it offend public policy or morality?

RCD 1334-0006 RCD 50976-0005 RCD 39870-0005

Thank you for your attention!