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
SUMMARY

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... (see full summary)

 
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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

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

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