Design & Copyright
UNREGISTERED COMMUNITY DESIGN
As with UK unregistered design right, unregistered Community design protection
attaches to the shape and configuration as applied to a product. Unlike
the UK right however, the Community version also attaches to the appearance
of a product resulting from the lines, colours, texture and/or materials
and/or from ornamentation and surface decoration of
a product.
Unregistered Community designs are not an absolute form of protection in that, in order to successfully pursue an infringer, it is necessary to show that the features of the design in question were copied. In comparison, for a design which is protected by a formal Design registration, it is merely a matter of considering the similarities between the design irrespective of whether or not the alleged infringing design might have been created quite independently from reference to the registered design.
An unregistered Community design does not require an application procedure and has a term of three years from the date when the design was first made available to the public in the Community. However, in order to qualify for protection, the design must be novel in that it must differ from prior designs by more than immaterial details, and must also have a so-called individual character insofar as it should produce a different overall impression from earlier designs on an informed user.
The right to an unregistered Community design belongs primarily to the
designer or his/her successors in title. Designs created by an employee
during the execution of his/her employment duties however can vest in the
employer. Unlike UK unregistered design right there are no qualification
requirements and so any party of any nationality can own an unregistered
Community design.