EU Design Defences

This note looks at the defences available in infringement actions for Registered Community Design Rights (RCD) and Unregistered Community Design Rights (UCD).

Overall the defences are very similar to those available with UK Registered Design Rights, they include:

– private and non-commercial use (Art 20(1)(a));

– experimental use (Art 20(1)(b));

– reproduction for citation or teaching purposes, where the use is fair practice and credit is given to the source (Art 20(1)c));

– use in relation to ships and aircraft registered in a another country but temporarily in EU territory (Art 20(2));

– sale of a product already marketed in the EU (exhaustion of rights) (Art 21);

– right of prior use i.e. where the defendant can show use of the same or a similar design prior to the filing / priority date of the RCD (Art 22);

– Goverrnmental use in relation to security or defence (Art 23);

– invalidity (Arts 24-26).

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