The genuine appearance of a product or part of a product. It can come from the shape, colour, contour, texture, material or ornamentation. For example in case of a television apparatus the new shape could be protected.
A Registered Community Design provides design protection to the territory of the European Union. With one single application made at OHIM the same legal protection can be obtained in each and every member state. Theoretically design application must be eligible for protection in all of the member states.
The two basic criteria for design protection is novelty in world-wide terms and individual character of the design. Novelty is destroyed by disclosed identical earlier designs. A design has an individual character if it gives a different (from previously disclosed designs) overall impression. There is one year grace period from date of disclosure for applicants regarding novelty.
Disclosure is making the design available to the public so that interested circles operating within the Community could reasonably be aware of the design. It is recommended to document the disclosure (e.g. trade mails, review on it) in case of later application or evidence.
RCD owner has the exclusive right to use the design and prevent third party’s use (making, offering, putting on market, importing, exporting, stocking for purpose of use) of a product, which have the same overall impression. Protection is granted for 5 years, which can be renewed with further 5-year terms up to 25 years.
A UCD (Unregistered Community Design) owner is entitled to step up against copying of the design. Protection endures for 3 years from the date of disclosure in the Community. No application or registration is needed. It is recommended to have a registered design since the granted legal protection is wider and it helps proving the existence of design protection.
Trademark is a sign used to identify the products or services of a company. Design is the appearance of a good. They do not exclude one another, therefore it is possible to obtain both. We recommend 3D trademark if the shape also characterizes the company and abstract enough to function as a logo (e.g. bottle of Coca Cola; original VW beetle). The conditions and time of protection are different.
The delay of the publication of the design may be requested for a maximum of 30 months for extra fee. It serves only practical purposes (e.g. the entrance to the market of the product takes longer time and you wish to keep the design in secret). Please note that Georg Pintz & Partners does not accept on-line authorization including deferment of publication. If so, please send your order letter in regular way.
RCD protection can be applied for at the OHIM. A completed application form accompanied with the representation of the design must be filed. Georg Pintz & Partners takes over your representation and proceeds with the application.
The OHIM examines the application only for formalities. No novelty search is completed. In case of failures with the legal requirements the OHIM notifies the applicant. Deficiencies may be restored by amendment of the application.
The grounds which invalidity request can be based upon are determined by Article 25 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs. They are the followings:
-- if it is not a design
-- if it does not comply with the legal requirements (e.g. novelty, individual character)
-- if the right holder is not entitled to RCD
-- if the RCD is in conflict with a prior design, even if that is made available to the public after the filing or priority date of the application
-- if a distinctive sign is used in a subsequent design and the holder has the right to prohibit the use of its distinctive sign
-- if the design is in conflict with copyright protection or protected signs.
The RCD register is the database of registered RCD-s and published RCD applications. Search facilities is not yet available online at OHIM. In our site there is a searchable database including designs from January 1, 2006.