Deferment of publication

Deferment of publication allows a design applicant to postpone making its registration available to the public, in order to preserve the confidentiality of a product before its launch. For the EU design, Regulation (EC) No 6/2002 permits deferment for a maximum of thirty months from the filing or priority date. Under French law, the applicant may request from INPI a deferment of up to three years from filing.

Conditions and procedure

The request for deferment must be made on filing. For the EU design, the EUIPO registers the design but publishes only a mention of it, and the holder must pay the publication fee before the period expires in order to obtain full publication, failing which the registration is deemed never to have had effect. The holder may also request early publication. Under the Hague System, deferment is also possible, within the limits accepted by each designated contracting party.

Effects during deferment

During deferment, the EU design protects only against copying, like the unregistered design, and not against independent creation. A holder wishing to take action before publication must communicate the content of the registration to the defendant. Under French law, enforceability against third parties in principle requires publication, unless a copy of the registration has been notified to the third party concerned. Deferment does not postpone the filing date, which remains the reference date for novelty.

Strategic uses

Deferment is useful where the product is not yet on the market or where the applicant wishes to protect several variants without revealing which will be adopted. It secures a filing date at the design stage, before any disclosure, while preventing a competitor from discovering the design in the registers. It does, however, require monitoring the publication deadline and accepting reduced protection during the period of secrecy.

Key points

Deferment of publication protects the confidentiality of a design filed before the product launch, within a limit of thirty months for the EU right. During this period, protection is reduced and action against third parties requires disclosing the registration to them. Deferment should be requested on filing, the publication deadline entered in the diary and the fees paid in good time, failing which the right loses its effect.

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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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