The registered design or community design
The registered design represents the two-dimensional or three-dimensional appearance of an entire product or a part thereof. The appearance of the product or part thereof results from the characteristics of the lines, contours, colours, shape, texture or materials or its ornamentation.
If you wish to have this ornamental design or decoration of your product or its packaging protected, a design application should be filed.
Design protection is territorial, so it is linked to the country or countries for which it is applied for. Registered designs as well as trademarks can be registered at a purely national level (German Patent and Trademark Office; DPMA), European level (Office of the European Union for intellectual property; EUIPO) or even internationally (World Organization for Intellectual Property; WIPO).
The design's term of protection is limited to 25 years, with a maintenance fee payable every five years.
The unregistered Community design?
This bulky term "unregistered Community design" hides a lifeline for all those who have not registered a design with the DPMA, the EUIPO or WIPO and still want to take action against imitators.
According to the Community Design Regulation, even those who do not register their design have design protection for a limited period of 3 years, but only if the infringing design is an imitation and not a parallel development (cf. Art. 19 II GGV ).
In addition, the design on which the unregistered Community design is based (design) may only have been made publicly available for the first time in the Community (Art. 110a V GGV). This must be proven in the infringement proceedings against third parties.
Likewise, the date of the first disclosure of the design and the fact that the interested circles in the European Union have had the opportunity to become aware of the disclosed design must be established in a lawful manner.
The difficulties associated with proving the timing and scope of the disclosure should not be underestimated.
Therefore, in my opinion, the registered design is fundamentally preferable to the unregistered Community design.
Design application vs. trademark application
As an aid to deciding whether to apply for a design or a figurative or 3D trademark - although in principle both are also possible - it is advisable to focus on the intended purpose.
If you intend to use your sign to identify goods or services in order to indicate the origin of the product, you should apply for a trademark. If, on the other hand, you want to decorate or embellish a product or its packaging, an application for a design should be considered.
If you intend to use your sign to identify goods or services in order to indicate the origin of the product, you should apply for a trademark. If, on the other hand, you want to decorate or embellish a product or its packaging, an application for a design should be considered.
