Unregistered Community design

The unregistered Community design is a European Union right that arises without any formality, solely by virtue of the disclosure to the public of a design meeting the substantive requirements for protection. Established by Regulation (EC) No 6/2002, it confers on its holder, for three years from the first disclosure within the Union, a right limited to prohibiting copies. The 2024 reform renames it the “unregistered EU design” without altering its underlying scheme.

How the right comes into being

The right presupposes a design within the meaning of the Regulation, namely the appearance of a product or part of a product, which is new and has individual character, a requirement French law calls caractère propre. It further presupposes a disclosure to the public, by publication, exhibition, use in trade or any other means, such that the specialised circles of the sector concerned operating within the Union could reasonably have become aware of it. That disclosure starts the three-year period and fixes the date at which novelty and individual character are assessed. The 2024 reform enshrined the requirement of a disclosure within the territory of the Union, so that a first presentation outside the Union does not give rise to the right, even though it may destroy novelty.

Scope of the right: protection against copying

Unlike the registered right, the unregistered design does not confer an absolute monopoly. Its holder may only prohibit uses that result from copying. The contested use falls outside the right where it results from an independent work of creation by a designer who may reasonably be thought not to have been familiar with the disclosed design. As with the registered right, protection extends to any design which does not produce on the informed user a different overall impression. The three-year term can be neither extended nor converted, which makes this right a testing instrument for fast-moving sectors.

Litigation and evidence

Actions fall within the jurisdiction of the EU design courts designated by each Member State, which in France means the Paris Judicial Court. The holder must establish the date and circumstances of the first disclosure, indicate what constitutes the individual character of the design and show that the contested product results from copying. The Regulation creates in the holder’s favour a presumption of validity once the holder proves the disclosure and specifies the elements of individual character, and the defendant may challenge validity by way of a plea or a counterclaim.

Key points

The unregistered design protects free of charge, for three years from the first disclosure within the Union, a creation whose appearance is new and has individual character, but only against copies. The date, place and manner of each first presentation to the public should be documented, and creations deserving full protection should be filed within twelve months. Before bringing any infringement action, check that evidence of copying can be produced.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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