The requirements for protection of the community design

• Author: Alina Mihaela Conea
• Position: Assistant, Ph.D. candidate, Faculty of Law, 'Nicolae Titulescu' University
• Pages: 129-143

Alina Mihaela Conea

129

LESIJ NO. XVIII, VOL. 1/2011

THE REQUIREMENTS FOR PROTECTION

OF THE COMMUNITY DESIGN

Alina Mihaela CONEA∗

Abstract

This paper aims at showing the key issues underlying the requirements for protection of the

community design. According to the Council Regulation (EC) No 6/2002, a design must satisfy two

main conditions to be protected by a Community design: novelty and individual character. A

further consideration is the requirement of visibility, but only when it comes to register component

parts of a complex product. Three main types of subject matters are excluded from protection:

first, a Community design cannot relate to characteristics of the appearance of a product that are

exclusively dictated by its technical function; second, the situation referred to as “must fit” and

“must match” cases and, third, a design applied to or incorporated in a component part of a

complex product if the component part does not remain visible during the normal use of the

complex product. Also, Community designs contrary to public policy or to accepted principles of

morality are excluded from protection. One special interest of the paper is the recent

jurisprudence of the community design courts in this field. A core element of the protection system

is the role of the community court’s jurisdiction in matters of community design. These are courts

of Member States that have been designated by them as community courts, which have exclusive

jurisdiction to decide on cases of breaches of rights of community designs. The evolving and

contradictory decisions of the national instances implies that with respect to the evolution of a

homogeneous case law on unified Community industrial property, the European Court of Justice

has had and still has to fulfil its exclusive mission of informing national courts as to the direction,

in which European Union law is to develop.

Keywords: community design, individual character, informed user, solely dictated by

technical function, European Court of Justice

Introduction

The Community Design Regulation (CDR)1 states, in articles 4 to 9, that a design shall be

protected by a Community design to the extent that it is new and has individual character. A

further consideration is the requirement of visibility, but only when it comes to register component

parts of a complex product. In addition, Community designs contrary to public policy or to

accepted principles of morality are excluded from protection. The requirements for protection of

community design mentioned above are circumstantiated using notions that entail further

consideration and analysis. The present paper highlights, in the context of community design,

these concepts and attempts to clarify them

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∗ Assistant, Ph.D. candidate, Faculty of Law, “Nicolae Titulescu” University; (e-mail: alinaconea@gmail.com).

1 Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs, OJ L 3, 5.1.2002, p. 1–24