Community Design

Council Regulation (EC) No 6/2002 on Community designs ("the Community design regulation") provides for a system of design registration at EC level in addition to national design registration. The regulation also creates a new unregistered Community unregistered design right.

Community Design
Art. 1(3) of the Community design regulation provides that a Community design shall have unitary character with equal effect throughout the EC. It shall not be registered, transferred or surrendered or be the subject of a decision declaring it invalid, nor shall its use be prohibited, save in respect of the whole EC.

Requirements
The pre-requisites for registration are substantially the same as  under the amended Registered Designs Act 1949. Art. 4 of the regulation requires a design to be new and have individual character. Art. 5 provides that a design is "new" if no identical design has been made available to the public before the date of application. Art. 6 provides that a design is considered to have individual character if the overall impression it produces on an informed user differs from the overall impression produced on such user by any design which has been made available to the public before the application for registration. In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.

Acquisition
Art. 2 of the regulation establishes the Office for Harmonization in the Internal Market (Trade Marks and Designs) ("OHIM") as the Community design registry. Applications for registration of a Community design are made either to OHIM direct or to a national patent office which forwards the application to OHIM. The Patent Office's fee for forwarding the application is £15. The formalities are set out in art. 36 of the Community design regulation and amplified in arts. 1 to 5 of the Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs ("the Implementing Regulation"). Representation before OHIM is restricted by art. 78 of the design regulation to lawyers and professional representatives. Applicants are strongly advised to consult a chartered patent agent.

Enforcement
Art. 80 of the Community design regulation requires member states to designate a limited number of first and second instance courts as Community design courts. Such courts have exclusive jurisdiction in respect of infringement and validity. The Patents and possibly the Patents County Courts have been designated Community design courts for England and Wales.

Important