Community designs

The community design is an industrial property right of the European Union and is similar to the registered design in Germany.

The appearance of a product or a part thereof is protected, which results in particular from the features of the lines, contours, colors, shape, surface structure, the materials of the product itself and its decoration. It must have a quirk.

The community design has been granted by the European Union since April 1, 2003. It can be obtained by registering with the European Union Intellectual Property Office (trademarks, designs and models) in Alicante for a cost of around € 350. The application can also be submitted to the German Patent and Trademark Office for a fee to be forwarded.

The Council Regulation (EC) No. 6/2002 of December 12, 2001 on Community Designs (GGV) is the legal basis for the protection of Community designs.

After registration by the Office, a design is protected by a registered Community design for a period of five years, starting with the filing date. The right holder can have the term of protection extended once or several times for a period of five years up to a total of 25 years from the filing date.

Unregistered Community Design

In addition to the Community design, which must be registered with the Office for Harmonization in Alicante, the GGV also protects unregistered Community designs. The unregistered Community design is protected against counterfeiting solely through disclosure to the public, but the owner bears the burden of proof that the design is actually protected. The protection of the unregistered Community design lasts three years. The prerequisite for protection without registration is that the design is new at the time of disclosure and has individual character.

Due to the burden of proof , disclosure is advisable either in a physical medium or on an online portal with a modification lock. There are several such portals that offer revelations optimized for the unregistered Community design, mostly for a fee but also free of charge.

If there is a lawsuit for infringement of an unregistered Community design, it is currently unclear how the defendant can defend himself against such an infringement action, because the different language versions of the regulation leave doubts as to whether the defendant must file a counterclaim or whether an objection is sufficient. It is more obvious that only an objection was meant, because a counterclaim would have effect erga omnes , i.e. against everyone, not just the plaintiff, which seems excessive in view of the short protection period of three years.

Scope of protection

In contrast to trademark law, protection is not limited to certain goods or services (use as a trademark); the owner of a community design can instead take action against any commercial use of the protected design. This is particularly important when using signs, i.e. graphic symbols or logos, which are thus “monopolized” as it were.

The novelty criterion does not depend on where the pattern was first made public. What is more important is whether it can be assumed that the relevant specialist groups within the European Union have made the disclosure, e.g. B. have taken note of the launch of a product in the USA. The problem here is that protection begins with disclosure in the EU - a model that at this point in time, however, due to an earlier publication, e.g. B. in the USA, was no longer new, is then no longer eligible for protection.