Lindy Lou Ltd, the designers and suppliers of see-through umbrellas, with often cute and catchy designs were reported in the press as securing undertakings from a fellow exhibitor at a recent trade show. The alleged ‘copier’ agreed not to sell or import the similar products and delivered up similar samples.
So in the absence of any registered right for the design what could they rely on? Well the answer can be found in the excellent legislation afforded by the European Community Unregistered design right.
The European Council Regulation 6/2002 as implemented by Commission Regulation 2245/2002, created both unregistered and registered European Community designs. The Community design applies to all 27 member states and came into effect on 1 April 2003.
Similar to UK design right the Regulation introduced a form of protection for all designs made available within the EU. The unregistered Community design right applies automatically to all qualifying designs disclosed to the public after 6 March 2002.
Their duration is only three years from the date on which the relevant design is first made available to the public within the EU.
As the regulation has been adopted in the UK, the EU requires a UK court to be designated and as such in England and Wales, the High Court, and any county court designated as a patents county court under section 287(1) of the Copyright, Designs and Patents Act 1988 will have jurisdiction.
What is a design?
While a computer program is specifically excluded from the definition of a design. The definition can be found in Article 3(a) of the Regulation where it is referred to as “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 and/or its ornamentation”.
The definition of a product can be found in among other things:
Parts intended to be assembled into a complex product;
Graphic symbols; and
Requirements for protection
Article 4 sets down the requirements for protection namely a design shall be protected by a Community design to the extent that it is new and has individual character.
What does Novel mean?
Article 5 refers to a design being new if no identical design has been shown to the public before the date on which the design for which protection is claimed has first been made available to the public;
But if the designs only differ slightly then these designs shall be considered identical.
How is novelty assessed?
Article 6 refers to the design having individual character that is 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, 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.
So overall the Regulations are essential knowledge and can be very powerful in preventing copying and damage to your business.