DESIGNS DEPARTMENT Examination Practice Note 2/2005 DEFINITION OF DESIGN

Transcription

1 DESIGNS DEPARTMENT Examination Practice Note 2/2005 DEFINITION OF DESIGN In accordance with Article 3(a) CDR a design 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 ornamentation. A 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. The exclusion of computer programs does not mean that screen images, menus, icons and other kinds of graphical elements of a program can not be protected as Community designs. The Office accepts graphical symbols and other kinds of images as Community designs. Compliance with the definition of a design is subject to examination. The examiner will refuse the application where he/she finds that the subject-matter of the application does not correspond to the definition of a design as set forth in Article 3(a) CDR. According to Office practice inter alia the following types of subject-matter do not correspond to the definition of a design as set forth in Article 3(a) CDR: 1. Colour per se as a design A colour per se does not comply with the definition of a design, because a colour unrelated to a product does not constitute an appearance of a product and hence is not a design in the meaning of Art. 3(a) CDR. Colour may of course be an element of a design, but on its own it is not accepted. 2. Fragrances and smells Fragrances and smells do not constitute the appearance of a product and therefore do not comply with the definition of a design. 3. Mere words and sequences of letters

2 Words per se as such do not comply with the definition of a design, because they do not constitute the appearance of a product. If the representation of the design consists of a word or a sequence of letters which is written in a standard letter type in black and white and it does not contain any other feature, e.g. a graphical element, such as a particular styling, calligraphy or typeface, jumping lineation or colour, the design does not constitute the appearance of a product and therefore does not comply with the definition of a design. In contrast, if the word or the sequence of letters includes a particular style which would be seen as figurative elements, the design is to be accepted, as has been e.g. RCD (published on 10/06/2003 at 1 shown below. 4. Music and sounds Music and sounds as such do not constitute the appearance of a product and therefore do not comply with the definition of a design. However, the graphical representation of a musical composition would qualify as a design, if applied for e.g. other printed matter in class of the Locarno Classification. 5. Living plants A living plant is not seen as a product, in other words an industrial or handicraft item in accordance with Art. 3(b) CDR. Therefore a living plant does not comply with the definition of a design, because a design is always the appearance of the whole or a part of a product. In contrast, an artificial flower or plant is an industrial or handicraft item and is therefore acceptable. 6. Blueprints, plans for houses or other architectural plans and interior or landscape designs when the application is for the finished product If the indication of the products in which the design is intended to be incorporated or to which it is intended to be applied given in the application is 1 The designs shown in this document are reproduced for teaching purposes and as illustrative examples of the argumentative points made.

3 a finished product, blueprints, plans for houses or other architectural plans and interior or landscape designs (e.g. gardens) do not comply with the definition of a design if they do not show the appearance of the finished product. Therefore, e.g. in a situation where the indication of products is houses in class of the Locarno Classification and the application would consist of a representation of the design showing a plan for a house such as the one shown below, the application would be refused. In this case the design does not consist of the appearance of the whole or a part of the product as indicated in the application. However, if the indication of products would be given as architects plans in class of the Locarno Classification, the representation of the design shown above would be a view of the appearance of the finished product as indicated and therefore it would fall within the definition of design and be acceptable. There is also a fine line between what can be seen as a blueprint or a plan and what can be seen as get-up or presentation. The acceptance or refusal of e.g. a design such as the interior of a shop, a train or a restaurant, or exterior design such as amusement or car parks, depends on whether the representation is seen to be more as a blueprint or a plan or on the other hand as get-up or presentation. For example in RCD (published on 23/12/2003 at 040/ _0001.htm) shown below, the design was considered to be get-up or presentation rather than a blueprint or a plan. Therefore it is the design of a finished product.

4 7. Photographs A photograph as such constitutes the appearance of a product and therefore complies with the definition of a design. For example application (published on 19/04/2005 at 032/ _0001.htm) shown below has been accepted as a RCD. Such products would normally be classified as writing paper, cards for correspondence and announcements in class 19-01, or as other printed matter in class of the Locarno Classification. Deficiencies In accordance with Article 47 CDR, Article 11 CDIR and Section 5.3 of the Examination Guidelines 2, where a ground for non-registrability is found, the examiner will notify the applicant in the examination report along with other deficiencies, if any. A time limit of two months will be set for the applicant to submit his/her observations, withdraw the application or amend it by submitting an amended representation of the design, provided that the identity of the design is retained. The application will be rejected if the applicant fails to overcome the ground for non-registrability within the time limit specified. If what is submitted does not correspond to the definition of a design, the application also does not fulfil the conditions of Article 36(1)(c) CDR ("a representation of the design") and a filing date can not be granted. In this 2 Decision No EX-04-1 of the President of the Office Of 26 April 2004 adopting Guidelines for the proceedings relating to a declaration of invalidity of a registered Community design (OJ 6/2004, p 223)

5 case the fees will be reimbursed, pursuant to Article 10(2), second paragraph, CDIR. A multiple application may be rejected in part where the ground for nonregistrability only applies to certain designs of the application. 02/05/2005