Design Rights

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"Design right protects the shape of a three-dimensional design. It subsists if the design is recorded on paper, or if a product has been made according to that design. It has rules on qualification for protection by both citizenship of the designer and place of the designing9 . ‘Design’ here means 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. ‘Product’ means any industrial or handicraft item, including inter alia parts intended to be assembled into a complex product, packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs. ‘Complex product’ means a product which is composed of multiple components which can be replaced permitting disassembly and reassembly of the product.

Design right does not subsist in parts of a design necessary to connect to another article, to surface decoration, to methods and principles of construction or to those parts of a design which are dependent on the appearance of another article, where that article and the article that design right applies to is an integral part of the second article. Design right also does not apply if a design is not original, and a design is defined as not being original if the object so designed is commonplace in the field when designed.

The European Union has two important directives on design rights: the 1998 Design Directive (DD) and the 2002 Community Design Regulation (CDR)10. The DD was enacted with the goal of harmonising the – sometimes significantly heterogeneous – national legislations of Member States in the field of registered design products (Margoni 2013). The CDR provides a registered option of Registered Community Design (RCD) and also an unregistered option, Unregistered Community Design (UCD).

A key aspect of the CDR is the unitary character of protection, which mandates that a community design shall have equal effect throughout the Community and can only be registered, transferred, or surrendered or be declared invalid in the whole European Community. The CDR also mentions certain limitations: “Technological innovation should not be hampered by granting design protection to features dictated solely by a technical function. It is understood that this does not entail that a design must have an aesthetic quality. Likewise, the interoperability of products of different makes should not be hindered by extending protection to the design of mechanical fittings. Consequently, those features of a design which are excluded from protection for those reasons should not be taken into consideration for the purpose of assessing whether other features of the design fulfil the requirements for protection”." (