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<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 3.2//EN"> <HTML> <HEAD> <TITLE></TITLE> <META NAME="Author" CONTENT=""> <META NAME="GENERATOR" CONTENT="Mozilla/3.0Gold (Win95; I) [Netscape]"> </HEAD> <BODY> <P><I>Copyright 1998 Commission of the European Communities <BR> </I>Copyright 1998 Commission of the European Communities <BR> PUBLICATION DATE: <B>October</B> 28, 1998 <BR> Official Journal L 289 , 28/10/1998 p. 0028 - 0035 <BR> 1998 OJ L 289 <BR> DOCUMENT DATE: October 13, 1998 </P> <P><BR> <B>TITLE:</B> Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of <B>designs</B> <BR> <BR> <B>AUTHOR:</B> EUROPEAN PARLIAMENT ; COUNCIL <BR> <BR> <B>TYPE:</B> DIRECTIVE <BR> <BR> <B>KEYWORDS:</B> <B>design</B> and pattern <BR> <BR> industrial property <BR> <BR> intellectual property <BR> <BR> EC countries APPROXIMATION OF LAWS ; INTERNAL MARKET ; INDUSTRIAL AND COMMERCIAL PROPERTY <BR> <BR> <B>BODY:</B> <BR> DIRECTIVE 98/71/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 October 1998 on the legal protection of <B>designs</B> <BR> <BR> THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, <BR> <BR> Having regard to the Treaty establishing the European Community and in particular Article 100a thereof, <BR> <BR> Having regard to the proposal by the Commission (1), <BR> <BR> Having regard to the opinion of the Economic and Social Committee (2), <BR> <BR> ... <BR> <BR> ... abolition of obstacles to the free movement of goods and also for the institution of a system ensuring that competition in the internal market is not distorted; whereas an approximation of the laws of the Member States on the legal protection of <B>designs</B> would further those objectives; <BR> <BR> (2) Whereas the differences in the legal protection of <B>designs</B> offered by the legislation of the Member States directly affect the establishment and functioning of the internal market as regards goods embodying <B>designs;</B> whereas such differences can distort competition within the internal market; <BR> <BR> (3) Whereas it is therefore necessary for the smooth functioning of the internal market to approximate the <B>design</B> protection laws of the Member States; <BR> <BR> (4) Whereas, in doing so, it is important to take into consideration the solutions and the advantages with which the Community <B>design</B> system will provide undertakings wishing to acquire <B>design</B> rights; <BR> <BR> (5) Whereas it is unnecessary to undertake a full-scale approximation of the <B>design</B> laws of the Member States, and it will be sufficient if approximation is limited to those national provisions of law which most directly affect the functioning of the internal market; whereas provisions on sanctions, remedies and enforcement should be left to national ... <BR> <BR> ... objectives of this limited approximation cannot be sufficiently achieved by the Member States acting alone; <BR> <BR> (6) Whereas Member States should accordingly remain free to fix the procedural provisions concerning registration, renewal and invalidation of <B>design</B> rights and provisions concerning the effects of such invalidity; <BR> <BR> (7) Whereas this Directive does not exclude the application to <B>designs</B> of national or Community legislation providing for protection other than that conferred by registration or publication as <B>design,</B> such as legislation relating to unregistered <B>design</B> rights, trade marks, patents and utility models, unfair competition or civil liability; <BR> <BR> (8) Whereas, in the absence of harmonisation of copyright law, it is important to establish the principle of cumulation of protection under specific registered <B>design</B> protection law and under copyright law, whilst leaving Member States free to establish the extent of copyright protection and the conditions under which such protection is conferred; <BR> <BR> (9) Whereas the attainment of the objectives of the internal market requires that the conditions for obtaining a registered <B>design</B> right be identical in all the Member States; whereas to that end it is necessary to give a unitary definition of the notion of <B>design</B> and of the requirements as to novelty and individual character with which registered <B>design</B> rights must comply; <BR> <BR> (10) Whereas it is essential, in order to facilitate the free movement of goods, to ensure in principle that registered <B>design</B> rights confer upon the right holder equivalent protection in all Member States; <BR> <BR> (11) Whereas protection is conferred by way of registration upon the right holder for those <B>design</B> features of a product, in whole or in part, which are shown visibly in an application and made available to the public by way of publication or consultation of the relevant file; <BR> <BR> (12) Whereas protection should not be ... <BR> <BR> ... component parts which are not visible during normal use of a product, or to those features of such part which are not visible when the part is mounted, or which would not, in themselves, fulfil the requirements as to novelty and individual character; whereas features of <B>design</B> which are excluded from protection for these reasons should not be taken into consideration for the purpose of assessing whether other features of the <B>design</B> fulfil the requirements for protection; <BR> <BR> (13) Whereas the assessment as to whether a <B>design</B> has individual character should be based on whether the overall impression produced on an informed user viewing the <B>design</B> clearly differs from that produced on him by the existing <B>design</B> corpus, taking into consideration the nature of the product to which the <B>design</B> is applied or in which it is incorporated, and in particular the industrial sector to which it belongs and the degree of freedom of the designer in developing the <B>design;</B> <BR> <BR> (14) Whereas technological innovation should not be hampered by granting <B>design</B> protection to features dictated solely by a technical function; whereas it is understood that this does not entail that a <B>design</B> must have an aesthetic quality; whereas, likewise, the interoperability of products of different makes should not be hindered by extending protection to the <B>design</B> of mechanical fittings; whereas features of a <B>design</B> which are excluded from protection for these reasons should not be taken into consideration for the purpose of assessing whether other features of the <B>design</B> fulfil the requirements for protection; <BR> <BR> (15) Whereas the mechanical fittings of modular products may nevertheless constitute an important element of the innovative characteristics of modular products and present a major marketing asset and therefore should be eligible for protection; <BR> <BR> (16) Whereas a <B>design</B> right shall not subsist in a <B>design</B> which is contrary to public policy or to accepted principles of morality; whereas this Directive does not constitute a harmonisation of national concepts of public policy or accepted principles of morality; <BR> <BR> (17) Whereas it is fundamental for the smooth functioning of the internal market to unify the term of protection afforded by registered <B>design</B> rights; <BR> <BR> (18) Whereas the provisions of this Directive are without prejudice to the application of the competition rules under Articles 85 and 86 of the Treaty; <BR> <BR> (19) Whereas the rapid adoption of this Directive has become a matter of urgency for a number of industrial sectors; whereas full-scale approximation of the laws of the Member States on the use of protected <B>designs</B> for the purpose of permitting the repair of a complex product so as to restore its original appearance, where the product incorporating the <B>design or to which the design</B> is applied constitutes a component part of a complex product upon whose appearance the protected <B>design</B> is dependent, cannot be introduced at the present stage; whereas the lack of full-scale approximation of the laws of the Member States on the use of protected <B>designs</B> for such repair of a complex product should not constitute an obstacle to the approximation of those other national provisions of <B>design</B> law which most directly affect the functioning of the internal market; whereas for this reason Member States should in the meantime maintain in force any provisions in conformity with the Treaty relating to the use of the <B>design</B> of a component part used for the purpose of the repair of a complex product so as to restore its original appearance, or, if they introduce any new provisions relating to such use, the purpose of these provisions should be only to liberalise the market in such parts; whereas those Member States which, on the date of entry into force of this Directive, do not provide for protection for <B>designs</B> of component parts are not required to introduce registration of <B>designs</B> for such parts; whereas three years after the implementation date the Commission should submit an analysis of the consequences of the provisions of this Directive for Community industry, for consumers, for competition and for the functioning of the internal ... <BR> <BR> ... Directive needed to complete the internal market in respect of component parts of complex products, and any other changes which it considers necessary; <BR> <BR> (20) Whereas the transitional provision in Article 14 concerning the <B>design</B> of a component part used for the purpose of the repair of a complex product so as to restore its original appearance is in no case to be construed as constituting an obstacle to the free movement of a product which ... <BR> <BR> ... a component part; <BR> <BR> (21) Whereas the substantive grounds for refusal of registration in those Member States which provide for substantive examination of applications prior to registration, and the substantive grounds for the invalidation of registered <B>design</B> rights in all the Member States, must be exhaustively enumerated, <BR> <BR> HAVE ADOPTED THIS DIRECTIVE: <BR> <BR> <BR> <BR> <BR> <BR> Article 1 <BR> <BR> <BR> <BR> Definitions <BR> <BR> For the purpose of this Directive: <BR> <BR> (a) '<B>design</B> 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; <BR> <BR> (b) 'product means any industrial or ... <BR> <BR> ... programs; <BR> <BR> (c) 'complex product means a product which is composed of multiple components which can be replaced permitting disassembly and reassembly of the product. <BR> <BR> <BR> <BR> Article 2 <BR> <BR> <BR> <BR> Scope of application <BR> <BR> 1. This Directive shall apply to: <BR> <BR> (a) <B>design</B> rights registered with the central industrial property offices of the Member States; <BR> <BR> (b) <B>design</B> rights registered at the Benelux <B>Design</B> Office; <BR> <BR> (c) <B>design</B> rights registered under international arrangements which have effect in a Member State; <BR> <BR> (d) applications for <B>design</B> rights referred to under (a), (b) and (c). <BR> <BR> 2. For the purpose of this Directive, <B>design</B> registration shall also comprise the publication following filing of the <B>design</B> with the industrial property office of a Member State in which such publication has the effect of bringing a <B>design</B> right into existence. <BR> <BR> <BR> <BR> Article 3 <BR> <BR> <BR> <BR> Protection requirements <BR> <BR> 1. Member States shall protect <B>designs</B> by registration, and shall confer exclusive rights upon their holders in accordance with the provisions of this Directive. <BR> <BR> 2. A <B>design</B> shall be protected by a <B>design</B> right to the extent that it is new and has individual character. <BR> <BR> 3. A <B>design</B> applied to or incorporated in a product which constitutes a component part of a complex product shall only be considered to be new and to have individual character: <BR> <BR> (a) if the component part, once it has been incorporated into the complex ... <BR> <BR> ... individual character. <BR> <BR> 4. 'Normal use within the meaning of paragraph (3)(a) shall mean use by the end user, excluding maintenance, servicing or repair work. <BR> <BR> <BR> <BR> Article 4 <BR> <BR> <BR> <BR> Novelty <BR> <BR> A <B>design</B> shall be considered new if no identical <B>design</B> has been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority. <B>Designs</B> shall be deemed to be identical if their features differ only in immaterial details. <BR> <BR> <BR> <BR> Article 5 <BR> <BR> <BR> <BR> Individual character <BR> <BR> 1. A <B>design</B> shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any <B>design</B> which has been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority. <BR> <BR> 2. In assessing individual character, the degree of freedom of the designer in developing the <B>design</B> shall be taken into consideration. <BR> <BR> <BR> <BR> Article 6 <BR> <BR> <BR> <BR> Disclosure <BR> <BR> 1. For the purpose of applying Articles 4 and 5, a <B>design</B> shall be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, except where these events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the Community, before the date of filing of the application for registration or, if priority is claimed, the date of priority. The <B>design</B> shall not, however, be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality. <BR> <BR> 2. A disclosure shall not be taken into consideration for the purpose of applying Articles 4 and 5 if a <B>design</B> for which protection is claimed under a registered <B>design</B> right of a Member State has been made available to the public: <BR> <BR> (a) by the designer, his successor in title, or a third person as a result of information provided or action taken by the designer, or his successor in title; and <BR> <BR> (b) during the 12-month period preceding the date of filing of the application or, if priority is claimed, the date of priority. <BR> <BR> 3. Paragraph 2 shall also apply if the <B>design</B> has been made available to the public as a consequence of an abuse in relation to the designer or his successor in title. <BR> <BR> <BR> <BR> Article 7 <BR> <BR> <BR> <BR> <B>Designs</B> dictated by their technical function and <B>designs</B> of interconnections <BR> <BR> 1. A <B>design</B> right shall not subsist in features of appearance of a product which are solely dictated by its technical function. <BR> <BR> 2. A <B>design</B> right shall not subsist in features of appearance of a product which must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the <B>design</B> is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function. <BR> <BR> 3. Notwithstanding paragraph 2, a <B>design</B> right shall, under the conditions set out in Articles 4 and 5, subsist in a <B>design</B> serving the purpose of allowing multiple assembly or connection of mutually interchangeable products within a modular system. <BR> <BR> <BR> <BR> Article 8 <BR> <BR> <BR> <BR> <B>Designs</B> contrary to public policy or morality <BR> <BR> A <B>design</B> right shall not subsist in a <B>design</B> which is contrary to public policy or to accepted principles of morality. <BR> <BR> <BR> <BR> Article 9 <BR> <BR> <BR> <BR> Scope of protection <BR> <BR> 1. The scope of the protection conferred by a <B>design</B> right shall include any <B>design</B> which does not produce on the informed user a different overall impression. <BR> <BR> 2. In assessing the scope of protection, the degree of freedom of the designer in developing his <B>design</B> shall be taken into consideration. <BR> <BR> <BR> <BR> Article 10 <BR> <BR> <BR> <BR> Term of protection <BR> <BR> Upon registration, a <B>design</B> which meets the requirements of Article 3(2) shall be protected by a <B>design</B> right for one or more periods of five years from the date of filing of the application. The right holder may have the term of protection renewed for one or more periods of five years each, up to a total term of 25 years from the date of filing. <BR> <BR> <BR> <BR> Article 11 <BR> <BR> <BR> <BR> Invalidity or refusal of registration <BR> <BR> 1. A <B>design</B> shall be refused registration, or, if the <B>design</B> has been registered, the <B>design</B> right shall be declared invalid: <BR> <BR> (a) if the <B>design</B> is not a <B>design</B> within the meaning of Article 1(a); or <BR> <BR> (b) if it does not fulfil the requirements of Articles 3 to 8; or <BR> <BR> (c) if the applicant for or the holder of the <B>design</B> right is not entitled to it under the law of the Member State concerned; or <BR> <BR> (d) if the <B>design</B> is in conflict with a prior <B>design</B> which has been made available to the public after the date of filing of the application or, if priority is claimed, the date of priority, and which is protected from a date prior to the said date by a registered Community <B>design</B> or an application for a registered Community <B>design</B> or by a <B>design</B> right of the Member State concerned, or by an application for such a right. <BR> <BR> 2. Any Member State may provide that a <B>design</B> shall be refused registration, or, if the <B>design</B> has been registered, that the <B>design</B> right shall be declared invalid: <BR> <BR> (a) if a distinctive sign is used in a subsequent <B>design,</B> and Community law or the law of the Member State concerned governing that sign confers on the right holder of the sign the right to prohibit such use; or <BR> <BR> (b) if the <B>design</B> constitutes an unauthorised use of a work protected under the copyright law of the Member State concerned; or <BR> <BR> (c) if the <B>design</B> constitutes an improper use of any of the items listed in Article 6b of the Paris Convention for the Protection of Industrial Property, or of badges, emblems and escutcheons other than those covered by Article 6b of the said Convention which are of particular public interest in the Member State concerned. <BR> <BR> 3. The ground provided for in paragraph 1(c) may be invoked solely by the person who is entitled to the <B>design</B> right under the law of the Member State concerned. <BR> <BR> 4. The grounds provided for in paragraph 1(d) and in paragraph 2(a) and (b) may be invoked solely by the applicant for or the ... <BR> <BR> ... States to provide that the grounds provided for in paragraphs 1(d) and 2(c) may also be invoked by the appropriate authority of the Member State in question on its own initiative. <BR> <BR> 7. When a <B>design</B> has been refused registration or a <B>design</B> right has been declared invalid pursuant to paragraph 1(b) or to paragraph 2, the <B>design</B> may be registered or the <B>design</B> right maintained in an amended form, if in that form it complies with the requirements for protection and the identity of the <B>design</B> is retained. Registration or maintenance in an amended form may include registration accompanied by a partial disclaimer by the holder of the <B>design</B> right or entry in the <B>design</B> Register of a court decision declaring the partial invalidity of the <B>design</B> right. <BR> <BR> 8. Any Member State may provide that, by way of derogation from paragraphs 1 to 7, the grounds for refusal of registration or for invalidation in force in that State prior to the date on which the provisions necessary to comply with this Directive enter into force shall apply to <B>design</B> applications which have been made prior to that date and to resulting registrations. <BR> <BR> 9. A <B>design</B> right may be declared invalid even after it has lapsed or has been surrendered. <BR> <BR> <BR> <BR> Article 12 <BR> <BR> <BR> <BR> Rights conferred by the <B>design</B> right <BR> <BR> 1. The registration of a <B>design</B> shall confer on its holder the exclusive right to use it and to prevent any third party not having his consent from using it. The aforementioned use shall cover, in particular, the making, offering, putting on the market, importing, exporting or using of a product in which the <B>design</B> is incorporated or to which it is applied, or stocking such a product for those purposes. <BR> <BR> 2. Where, under the law of a Member State, acts referred to in paragraph 1 could not be prevented before the date on which the provisions necessary to comply with this Directive entered into force, the rights conferred by the <B>design</B> right may not be invoked to prevent continuation of such acts by any person who had begun such acts prior to that date. <BR> <BR> <BR> <BR> Article 13 <BR> <BR> <BR> <BR> Limitation of the rights conferred by the <B>design</B> right <BR> <BR> 1. The rights conferred by a <B>design</B> right upon registration shall not be exercised in respect of: <BR> <BR> (a) acts done privately and for non- commercial purposes; <BR> <BR> (b) acts done for experimental purposes; <BR> <BR> (c) acts of reproduction for the purposes of making citations or of teaching, provided that such acts are compatible with fair trade practice and do not unduly prejudice the normal exploitation of the <B>design,</B> and that mention is made of the source. <BR> <BR> 2. In addition, the rights conferred by a <B>design</B> right upon registration shall not be exercised in respect of: <BR> <BR> (a) the equipment on ships and aircraft registered in another country when these temporarily enter the territory of the Member State concerned; <BR> <BR> (b) the importation in the Member State concerned of <B>spare parts</B> and accessories for the purpose of repairing such craft; <BR> <BR> (c) the execution of repairs on such craft. <BR> <BR> <BR> <BR> Article 14 <BR> <BR> <BR> <BR> Transitional provision <BR> <BR> Until such time as amendments to this Directive are adopted on a proposal from the Commission in accordance with the provisions of Article 18, Member States shall maintain in force their existing legal provisions relating to the use of the <B>design</B> of a component part used for the purpose of the repair of a complex product so as to restore its original appearance and shall introduce changes to those provisions only if the purpose is to liberalise the market for such parts. <BR> <BR> <BR> <BR> Article 15 <BR> <BR> <BR> <BR> Exhaustion of rights <BR> <BR> The rights conferred by a <B>design</B> right upon registration shall not extend to acts relating to a product in which a <B>design</B> included within the scope of protection of the <B>design</B> right is incorporated or to which it is applied, when the product has been put on the market in the Community by the holder of the <B>design</B> right or with his consent. <BR> <BR> <BR> <BR> Article 16 <BR> <BR> <BR> <BR> Relationship to other forms of protection <BR> <BR> The provisions of this Directive shall be without prejudice to any provisions of Community law or of the law of the Member State concerned relating to unregistered <B>design</B> rights, trade marks or other distinctive signs, patents and utility models, typefaces, civil liability or unfair competition. <BR> <BR> <BR> <BR> Article 17 <BR> <BR> <BR> <BR> Relationship to copyright <BR> <BR> A <B>design</B> protected by a <B>design</B> right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection under the law of copyright of that State as from the date on which the <B>design</B> was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State. <BR> <BR> <BR> <BR> Article 18 <BR> <BR> <BR> <BR> Revision <BR> <BR> Three ... <BR> <BR> ... year a Green Paper regarding piracy and counterfeiting in the internal market. <BR> <BR> The Commission will include in this Green Paper Parliament's idea of creating an obligation for counterfeiters to provide holders of <B>design</B> rights with information on their illegal acts. <BR> <BR> <BR> <BR> <BR> <BR> <BR> <BR> Statement by the Commission regarding Article 18 <BR> <BR> Immediately following the date of adoption of the Directive, and without prejudice to Article 18, the Commission proposes to launch a consultation exercise involving manufacturers of complex products and of component parts in the motor vehicles sector. The aim of this consultation will be to arrive at a voluntary agreement between the parties involved on the protection of <B>designs</B> in cases where the product incorporating the <B>design or to which the design</B> is applied constitutes a component part of a complex product upon whose appearance the protected <B>design</B> is dependent. <BR> <BR> The Commission will coordinate the consultation exercise and will report regularly to the Parliament and the Council on its progress. The consulted parties will be invited by the Commission to consider a range of possible options on which to base a voluntary agreement, including a remuneration system and a system based on a limited period of <B>design</B> protection. <BR> <BR> <BR> <BR> END</P> <P><A HREF="eudedrp1.htm">EU DIRECTIVE INTRODUCTORY REPORT AND RESOURCES</A></P> <P><A HREF="index.html">HOME</A></P> <P>This page was last updated on January 2, 1999.<BR> </P> </BODY> </HTML>