Design protection in the EU - Exclusive rights in appearance through council regulation no 6/2002

This concerns the Design part of the basic types of IP law (see intro to IP).

society's Incentives

  • Copyright - Incentive for promoting artistic creations
  • Trademark - Incentive for companies to provide "consumer safety" and minimize transaction costs
  • Patents - Incentive for disclosure of technical information and for promoting new tech.
  • Designs - Evolved from copytirgh. Promotes competition and creation of useful designs

Designers strive for a design so connected to its origin as possible. Iconic designs might move in to the TM area.

There is no unitary International Design right. Only national/regional rights.

International conventions:

  • Paris convention for the protection of industrial property
  • Geneva Act (1999) of the Hague Agreement converning the international registration of industrial designs.

Regional law:

  • Council Regulation (EC) no 6/2002 of 12 december 2001 on community designs
    • Write about implementation and sanctions (civil/penal).
    • Definitions:
      • "design" means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation (part of it).
      • "product" ...
      • "complex product" ...
  • Directive 98/71/EC (Harmonization of national designs law)

(Directives are instructions for legislators)

National law:

  • Swedish law on designs (Mönsterskyddslag SFS 1970:485)

What may be protected? GUIs, logos, cars, typefaces, ornamental designs (regardless of product applied to).

If you protect something in b/w, all color combinations are protected. E.g. Heinz bottles. Similarity is affected by both colour and shape, so color+shape is usually stronger.

Two types:

  • Registered design
    • Register through OHIM
    • Up to 25 years. Renewal with fee every five years.
    • Priority right.
  • Unregistered deisng
    • Inspired by UK
    • Aquired automatically when revealed to the public
    • Similar to copyright
    • 3 years
    • independent identical creation = no infringement (no priority right)
    • Burden of proof often on later design

Requirements for protection:

  • Novelty. N oidentencal design has been released to the public. For registered this is at date of application, unregistered on public.
  • Individual character. If the overall impression it produces on the informed user differs from the overall impression.


  • No absolute req. for novelty as for patents.
  • Regional req. only?
  • Grace period

Individual character:

  • Informed user; fairly acquainted. Considerations.

Scope of protection?

Two identical designs. The later design does not have priority over the prior design. Not needed to look at character.

Overall impression the same. Look at individual character.

WIth patents you could have a patent and then an invention that improves on that patent. The invention could then be patented. Not the case with designs.


US has examiners for all design applications.

LImitations and exceptions:

  • Spare parts. remains visible after incorporation into the complex products.
  • Design dictated by technical function. features of appearance of a product solely dictated by its technical function. Multiplicity of forms theory. Achieving same technical solution by many designs => not dictated by tech.
  • Design of interconnections (must-fit exemption). features that require reproduction in their exact form in order to have products mechanically connected so that each part may perform its function.
  • Modular systems (exemption from previous) serving the purpose of allowing the multiple assembly or connection of mutually interchangeable products within a modular system.

Case law:

2nd instance BoA (EU). Some parts of complex product still visible (lid, tank, etc.). High technical content => many differences in small details. Informed user till look at overall impression.

Strategic considerations:

  • Protecting variations of design. Commonly done using multiple applications with reduced fees.
  • Distinguishing features of product. Infringement case against parts of the full design
  • Overlapping protection. CTM and RCD together

If you register logo as design. Has to be novel and have individual character. Can't use in public before registering. Trademark can invalidate designs.

Advantages of EU prot.

  • Cheap. Lower than patents and TMs. (€1000 instead of €5000)
  • Quick procedure. Only formal examination. Less than 3 months from application to reg.
  • Reduce fees by multiple applications
  • Scope of protection not mlimited by classification (compare with TM). Suitable for new figurative TMs
  • Grace period


  • Scope of protection uncertain.
  • Easy to avoid infringment ("Design around"). Very little might be required to establish new individual character.
  • Difficult to assess prior art. I.e. researching other registered designs.
  • Copyright might be sufficient? No fees, no registration, term creator's death + 70yrs.