Trademarks

• Author: International Law Group

With Council Regulation No 6/2002, the European Union (EU) has issued comprehensive rules for "Community Designs," providing for simplified and uniform protection throughout the EU. [Editors' Note: In the EU legal system, a "regulation" is directly applicable within the Member States and does not need further implementation in each Member State. By contrast, a "directive" would need transposition into each Member State's national law to be effective.] This Regulation will enter into force on the 60th day of its publication, that is, on March 5, 2002.

The introduction to the Regulation notes that only the Benelux countries have a uniform design protection law. In all other Member States, design protection depends on national law. Thus, identical designs receive different protection in different Member States, which leads to trade disputes. Thus, the EU desired to create a Community design which is effective in each Member State through a single application made to the Office for Harmonisation in the Internal Market (Trade Marks and Design) (OHIM), or to the competent national authority.

The Regulation provides for both "short-term" and "long-term" protection, depending on the registrant's business needs. For example, many designs have a short market life because they are part of a series of successive designs. Others may need long-term protection because they are durable and may remain unchanged for many years. If a design is registered according to this Regulation, it would be a "registered Community design."

The Regulation defines "design" as "the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation". (See Article 3). A design can only gain protection if it is "new" and has "individual character." (See Articles 4-6).

The Regulation protects such a design for an initial period of five years, and allows for successive extensions up to 25 years. (See Articles 1 and 12). The owner can obtain some protection even without registration if it distributes the design to the public ("unregistered Community design"). The Regulation protects such a design for a period of three years from the date on which the design first went before the EU public. (See Articles 1 and 11).

Owners may apply for the protection of a Community design either at the OHIM or...