In 2003, Europe revamped its design laws to establish parallel registered and unregistered design rights. Although many manufacturers have been able to avail themselves of both types of design rights, neither avenue is free of traps for the unwary. Indeed, both European registered community design (RCD) protection, which is obtained via registration with the Office for Harmonization in the Internal Market (OHIM), and unregistered community design (UCD) protection, which is obtained via disclosure of a design in a European Community member state, operate such that if certain filings and disclosures are not made and timed properly, potential design rights may be lost or otherwise negatively affected.
As Europe’s role as a critical market for goods in the global economy continues to grow, so too does the importance of European design rights. The evolving distribution patterns of infringing goods and the long reach of European design rights into the European Community’s 27 member countries only increases the value of these rights to product designers and manufacturers. During the past few years, however, legal decisions have demonstrated how unfamiliarity with and disregard for the intricacies of European design rights — particularly the importance of properly timing registration filings and disclosures in attempting to establish such rights — can complicate, if not entirely bar, the securing of any protection under Europe’s design laws. This article examines these cases and seeks to provide strategies for avoiding similar situations.
