The essential guide to Community Unregistered Design Right.
CUDR can be traced to Council Regulation no. 6/2002. The most relevent parts of the Regulation are as follows:
Article 3 (a) Design means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines contours, colours, shape, texture and/or materials of the product itself
(b) Product means any industrial or handicraft item
Article 4(1) A design shall be protected by a Community design to the extent that it is new and has individual character
Article 5 (1) A design shall be considered to be new if no identical design has been made available to the public:
(a) in the case of an unregistered Community design, before the date on which the design for which protection is claimed has first been made available to the public
(2) Designs shall be deemed to be identical if their features differ only in immaterial details.
Article 6(1) A design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public.
(2) In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.
Article 7 For the purposes of applying articles 5 and 6, a design shall be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited , used in trade or otherwise disclosed before the date referred to before the date referred to in Articles 5(1)(a) and 6(1)(a) or in Articles 6(1)(b) or 7(1)(b) as the case may be except where these events could not reasonably have been known in the normal course of business to the circles specialised in the sectors concerned, operating within the Community…
Article 8(1) Community design shall not subsist in features of appearance of a product which are dictated solely by its technical function.
Article 11 (1) The scope of the protection conferred by a Community design shall include any design which does not produce on the informed user a different overall impression.
(2) In assessing the scope of protection, the degree of freedom of the designer in developing his design shall be taken into consideration.
Article 19 (1) A registered Community design shall confer on its holder the exclusive right to use it and to prevent any third party not having his consent from using it
(2) An unregistered Community design shall however confer on its holder the right to prevent the acts referred to in paragraph 1 only if the contested use results from copying the protected design.
Article 4 requires that the design shall be new and have individual character. The approach to the subsistence of CUDR is thus different to that of UKUDR since it requires the identification of relevant prior art as a first step. Prior availability to the public is inherent in both the requirement for novelty (Article 5(1)) and for the possession of individual character (Article 6(1)). This characteristic is elaborated in relation to both Arts 5 and 6 and in Article 7 (Disclosure).
If your design is challenged, the burden is on the party wishing to impeach the statutory right. Article 6 speaks of the informed user. Article 7 refers to what was known in the normal course of business to the circles specialised in the business concerned within the Community. The enquiry thus focuses on those having a practical interest in the use to which the product incorporating the design is to be put.