Disclosure of a design

Disclosure of a design means making it available to the public, in particular through publication, exhibition, use in trade or any other form of communication. It determines the prior art against which novelty and individual character are assessed, and it marks the starting point of protection for an unregistered design. Regulation (EC) No 6/2002 and the French Intellectual Property Code lay down its conditions and exceptions.

Disclosures taken into account

A disclosure is taken into account only if it could reasonably have become known, in the normal course of business, to the circles specialised in the sector concerned operating within the Union. A dissemination so confidential or obscure that it could not reach those circles has no effect. Nor can a disclosure made to a third party under an express or implied condition of confidentiality be relied on. These exceptions are interpreted strictly, and posting on a publicly accessible website is in principle sufficient to constitute disclosure.

The grace period

Design law provides for a grace period of twelve months before the filing or priority date. During that period, disclosure by the designer, the designer’s successor in title or a third party who obtained information as a result of their actions does not destroy the novelty of the later filing. The rule also applies to abusive disclosure against the designer. It makes it possible to test a product on the market before deciding whether to register it, but offers no protection against independent disclosure of a similar design by a third party during the same period.

Disclosure as the starting point of the unregistered design

The unregistered EU design is protected for three years from its first disclosure to the public within the Union, and only against copying. The reform resulting from Regulation (EU) 2024/2822 confirms that this initial disclosure must take place within the territory of the Union. The date and place of first disclosure thus become decisive evidential issues, which justify keeping launch materials and, where appropriate, using means of proof of the date of creation.

Key points

Disclosure determines the prior art that may be cited against a design and gives rise to protection of the unregistered design. The twelve-month grace period gives the designer time to file after a first presentation, without protecting them against competing creations. The date, place and medium of each disclosure should be precisely documented, and the grace period should not be allowed to expire when the product finds its market.

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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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