Unregistered Community Designs

Unregistered Community Designs Other Changes to Definitions   "Product"  "Sets of articles" (confirming existing EU, UK practice)  Interior layouts "Design"  "Movement, transition or any form of animation of those features" Unregistered Community Designs - Legal Review: "Amend [CDR Art 110a (5)] to clarify whether Unregistered Community Design exists if first disclosure is outside the EU" p127 - BGH I ZR 126/06 Gebäckpresse II: MUST be in the EU (on the basis of Art 110a (5) - UK IPEC Beverly Hills Teddy Bear [2019] EWHC 2419 (IPEC): Not acte claire reference to CJ (withdrawn) - Legislative history unclears: 1. Green Paper, initial Commission Proposal mention disclosure anywhere 2. Revised Proposal clearly limited to EU disclosure 3. Final Council text of CDR not limited to EU disclosure 4. Art 110a added later to deal with EU expansions - Proposal: Deletion of "Pursuant to Article 11, a design which has not been made public within the territory of the Community shall not enjoy protection as an unregistered Community design" New Defenses - Legal Review: "the provisions in respect of defenses, limitations of scope, and repair clauses applicable to design law do not currently align to those offered under copyright law" p151 - Council Proposal: add - "(d) acts carried out for the purpose of identifying or referring to a product as that of the design right holder; - (e) acts carried out for the purposes of comment, critique, or parody; - where the acts are compatible with fair trade practices and do not unduly prejudice the normal exploitation of the design" Effect of New Defenses? 1. Recital: "... such list of permissible uses should include acts of reproduction for the purpose of making citations or of teaching, referential use in the context of comparative advertising, and use for the purpose of comment or parody, provided that those acts are compatible with fair trade practices and do not unduly prejudice the normal exploitation of the design. Use of a design by third parties for the purpose of artistic expression should be considered as being fair as long as it is at the same time in accordance with honest practices in industrial and commercial matters. Furthermore, this Directive should be applied in a way that ensures full respect of fundamental rights and freedoms, and in particular the freedom of expression." 2. Enshrines C-24/16 Nintendo v Bigben; deals with LV v Plesner 2011 NL Darfurnica case (as against C-469/17 Funke Medien) Procedural Changes 1. EU Multiple Designs a) Removal of "Unity of Class" b) Introduction of 50-design Cap c) Simplification of Fees 2. Other EU Changes a) New Remedies - e.g. "further processing" - in line with EUTMs b) Fee Hikes? c) "EU design" instead of "Community design" 3. National Procedures - LOTS of alignment with RCD a) Harmonization of Indication of Product b) Harmonization of Multiple Designs c) Harmonization of Deferment Period d) Removal of Search e) Possible Rollout of Administrative Revocation Prior Rights: Example Case 1. R 1702/2010-3 Cited IR published years earlier 2. "The Board observes that Article 25(1)(d) CDR must not be interpreted solely on the basis of its wording ... A prior design which has been made available to the public prior to the date of filing of the application of the CDR (...) must enjoy protection which is at least as extensive as a prior design which has been made available to the public after 3. "In such a case the RCD must be considered to be in conflict with the prior design, because it falls within the scope of protection of the earlier right, notwithstanding the fact that it contains various and notable additional elements. The RCD consists of a design in which the prior design has been fully incorporated."