A European design patent (community design) is an exclusive right which protects the two- or three-dimensional aesthetic design of a product, resulting from ist visible features, in particular, the lines, contours, colours, shape, texture and/or materials.
1. What is a European design patent / community design?
Holders of a Registered Community Design (RCD) have exclusive rights to use the design and to prevent any third party from using it anywhere within the European Union. The rights cover, in particular, the making, offering, marketing, importing, exporting or use of a product in which the design is incorporated or to which it is applied, or holding stock of such a product for those purposes. The design patent Europe protects against both imitations and the development of an identical or similar design by third parties.
A European design patent is initially valid for 5 years from the date of filing and can be renewed in periods of five years up to a maximum of 25 years.
Please note that the registered illustrations of the product determine the level of protection. Thereby, the protection only refers to the visible features of the registered illustration. It is therefore of utmost importance to file appropriate illustrations with the European design patent office (EUiPO). Failure to do so may result in that the design rights cannot be fully enforced against competitors.
The European design patent has the advantage that it may be obtained in a simple registration procedure by means of a single application and that it is uniformly valid in all countries of the European Union. (For information on unregistered designs, see below.)
2. What can be registered as a design patent in Europe?
Any two-dimensional or three-dimensional appearance of a product, or of a part of it, can be protected. A product can be any industrial or handicraft item, including packaging, equipment, graphic symbols and typographic characters and items that can be assembled into a complex product. A computer program is not considered as a product. The design of a product must not be based on the technical function or the purpose of use of a product. I.e., designs that are considered to be dictated exclusively by the technical function of a product cannot be protected.
A design can only be protected, when the design is new and has individual character.
A design shall be considered to be new if no identical design has been made available to the public. Please note that an own publication of the design up to 12 months before the filing date of the design application will not be considered in assessing novelty (grace period), so that the design is considered new despite of the own publication.
A design has 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. The overall impression only needs to be slightly different from that of any existing design. A special creative achievement shall not be required.
The scope of the protection conferred by a design patent shall include any design which does not produce on the informed user a different overall impression.
Please, feel free to contact us if you have any question about design patent protection in Europe or design applications. Our European patent attorneys in Munich will be pleased to advise you.
3. How do I register a Community Design?
Community Design Applications are to be filed directly with the EUIPO.
You may submit a multiple application including as many designs as desired. The only requirement is that the individual designs all belong to the same product class. This classification is known as the Locarno Classification.
In case of online filing of a multiple application, there is an upper limit of 99 designs.
4. What happens after the submission of a European Design Application?
The applications will be assessed only in relation to formal requirements. There is no substantive examination (for novelty and individual character). It will be checked only whether the application relates to a design in general and whether the design is contrary to public policy or is contrary to accepted principles of morality.
If the application does not meet the formal requirements, the EUIPO will issue an official communication including an objection. This is usually done by a “deficiency notice” in which the applicant is given a deadline in order to respond to the notice.
Please note that a design will be registered even if the design is not new and has no individual character. In that case, however, the registration does not have any legal effect, but is only a pseudo registration from which no rights can be derived. The validity of the design patent is usually not assessed until litigation proceedings, cancellation proceedings or revocation proceedings take place. I.e. the holder of a design registration has to take a significant risk that it turns out that the design is actually not valid.
5. How much does a European design application cost?
In addition to the official fees, a European Design Application typically incurs attorney fees for preparing a list of goods as well as for completing the application forms and filing the application documents with the Patent Office. An application including one model may amount to about 900 €; for an application including 6 models, cost of about 2.000 € have to be expected. Please contact us for an individual offer. Our design attorneys in Munich look forward to hearing from you.
6. What is an unregistered Community Design?
An unregistered Community Design is very similar to a registered Community Design, but is given protection for a period of only three years from the date on which the design was first made available to the public within the territory of the European Union. Registered and unregistered Community Designs have to meet the same conditions to be protected.
Unlike a registered Community Design, you do not have to file an application to protect an unregistered design. There are also differences with respect to the legal rights resulting from a RCD and an UCD. An unregistered Community Dedsign confers on its holder only a right to prevent copying. Third-party‘s developments cannot be prohibited. The RCD in turn protects against both, imitations and the development of an identical or similar design by third parties.
During the first 12 months after the first disclosure of the design, you may still apply for a registered Community Design in order to increase the level of protection.