A Registered Community Design (RCD), is enforceable throughout the EU, can be obtained in a matter of hours because there is no substantive examination of the application by the EUIPO and is significantly cheaper than registering a trade mark and has another benefit that the rights cannot be revoked through non-use.
While there is a presumption of validity, in order to validly register a design right the design must be new and have individual character over pre-existing designs. This means that an old logo cannot become a valid RCD, unless only the designer himself/herself disclosed it during the 12-month grace period preceding the RCD filing date.
The requirement of individual character relates to the figure of the design only; the meaning of the words will not be taken into account. This means, for instance, that any logos comprising only words (or a word) written in a common font without any figurative elements are unlikely to be accepted as a valid design right.
An RCD that has been filed in the specific Locarno class 32 (logos) is not limited to any particular type of goods. It can therefore be enforced against any other design creating the same overall impression on the informed user regardless of the type of product. It may therefore be easier to take action against dissimilar types of goods on the basis of an RCD rather than a trade mark, because trade marks are registered only in respect of specified classes of goods or services.
On the other hand, the notional “informed user” that is said to assess the overall impression of design rights is generally held to be better informed and more attentive than the notional “average consumer” who is said to decide on trade mark infringements. Hence he may be more likely to spot differences between designs, which may lead to a finding of non-infringement.
Term of protection
Another point of difference from trade marks is that the maximum term of protection of an RCD is 25 years, as opposed to a potentially infinite term of protection for trade marks (subject to use and renewals).
Design rights can both complement and improve upon the protection of logos provided by trade marks. A well thought-through filing strategy should consider both types of rights in order to achieve the best possible protection for the brand.