Community design (unregistered)

Although still largely unknown, a further protective right for design results has existed for several years, which was created by Regulation (EC) No 6/2002. In addition to the registered community design, the regulation also allows for an unregistered community design, which can be created without application and administrative act since March 6, 2002 throughout the entire European Community.

An unregistered Community design (provided that the substantive requirements for protection are fulfilled) is created by making the design available to the public within the European Community. The designer thus obtains, solely by publication and without having to go through an application procedure, an industrial property right for his design which is valid for 3 years from the date of the first publication. The unregistered Community design can only be enforced against copies of the design (i.e. products whose design is based on the design), whereas the registered Community design grants an exclusive right of prohibition, i.e. it can also be enforced against independent parallel designs (comparable to patents in the technical field).

The apparent advantages of the unregistered Community design for the designer are counterbalanced by some problem areas which should not be forgotten by the "beneficiary" designers.

Firstly, it should be borne in mind that every designer must also take account of already existing property rights in the case of new designs if he does not want to run the risk of infringing such rights and being claimed by the right holder. However, unregistered designs are difficult to search because they are not recorded in any register.

Secondly, it may be seen as a relief that an unregistered Community design can only be enforced as a right of prohibition if "the contested use is the result of an imitation of the protected design".

Thirdly, it is very annoying for the owner of the unregistered Community design if he has to find out after the expiration of the protection period of 3 years that his product is economically very successful but can now be copied by any third party. In comparison, he could have obtained a term of protection of up to 25 years with the registered Community design.

This means that designers have at their disposal an industrial property right for designs capable of being copied, which can be acquired without application proceedings and costs and which opens up new possibilities, especially for the protection of the (aesthetic) design of seasonal, short-lived products.