Unregistered Community Design
As with UK unregistered design right, unregistered Community design protection arises for the shape and configuration as applied to a product. However, the community version also provides protection for the appearance of a product/article 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 as the right arises automatically upon creation. The term of protection however is three years from the date when the design was first made available to the public in the Community. 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 successor in title and designs created by an employee during the execution of his/her employment duties will belong to the employer. Unlike UK unregistered design right, there are no qualification requirements and so any party of any nationality can own and unregistered Community design.