Directive on the legal protection of designs
Encyclopedia
Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs
is a European Union directive
in the field of industrial design rights
, made under the internal market
provisions of the Treaty of Rome
. It sets harmonised standards for eligibility and protection of most types of
registered design.
is defined as "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" (Art. 2).
Designs may be protected if:
Where a design forms part of a more complex product, the novelty and individual character of the design are judged on the part
of the design which is visible during normal use.
Designs are not protected insofar as their appearance is wholly determined by their technical function, or by the need to
interconnect with other products to perform a technical function (the "must-fit" exception). However modular systems such as
Lego
or Mechano may be protected [Art. 8(3)].
way, notably by producing, importing, selling or using products based on the design. However, rightholders may not prevent
private and non-commercial use, use for research or use for teaching. There is also an exception for foreign-registered ships
and aeroplanes, based on the principles of maritime sovereignty.
Protection under a registered design right last initially for one or more periods of five years, and may be renewed up to a
maximum total of twenty-five years. In respect of a given product, they are exhausted when it is sold with the consent of the
rightholder (the first-sale doctrine
).
Protection by a registered design right does not affect any other intellectual property rights in the product, notably
unregistered design rights, patent
s and trade marks
. The question of copyright protection is left to the
laws of the Member States, which apply varying criteria of originality to the copyright protection of "applied art"; the point, however, is that the existence of the registered design right does not stop the design also being eligible for copyright protection.
Member States.
is a European Union directive
European Union directive
A directive is a legislative act of the European Union, which requires member states to achieve a particular result without dictating the means of achieving that result. It can be distinguished from regulations which are self-executing and do not require any implementing measures. Directives...
in the field of industrial design rights
Industrial design rights
An industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three...
, made under the internal market
provisions of the Treaty of Rome
Treaty of Rome
The Treaty of Rome, officially the Treaty establishing the European Economic Community, was an international agreement that led to the founding of the European Economic Community on 1 January 1958. It was signed on 25 March 1957 by Belgium, France, Italy, Luxembourg, the Netherlands and West Germany...
. It sets harmonised standards for eligibility and protection of most types of
registered design.
Eligible designs
A designDesign
Design as a noun informally refers to a plan or convention for the construction of an object or a system while “to design” refers to making this plan...
is defined as "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" (Art. 2).
Designs may be protected if:
- they are novel, that is if no identical design has been made available to the public;
- they have individual character, that is the "informed user" would find it different from other designs which are available to the public.
Where a design forms part of a more complex product, the novelty and individual character of the design are judged on the part
of the design which is visible during normal use.
Designs are not protected insofar as their appearance is wholly determined by their technical function, or by the need to
interconnect with other products to perform a technical function (the "must-fit" exception). However modular systems such as
Lego
Lego
Lego is a line of construction toys manufactured by the Lego Group, a privately held company based in Billund, Denmark. The company's flagship product, Lego, consists of colorful interlocking plastic bricks and an accompanying array of gears, minifigures and various other parts...
or Mechano may be protected [Art. 8(3)].
Design right protection
The holder of a registered design right has the exclusive right to authorize or prohibit others from using the design in anyway, notably by producing, importing, selling or using products based on the design. However, rightholders may not prevent
private and non-commercial use, use for research or use for teaching. There is also an exception for foreign-registered ships
and aeroplanes, based on the principles of maritime sovereignty.
Protection under a registered design right last initially for one or more periods of five years, and may be renewed up to a
maximum total of twenty-five years. In respect of a given product, they are exhausted when it is sold with the consent of the
rightholder (the first-sale doctrine
First-sale doctrine
The first-sale doctrine is a limitation on copyright that was recognized by the Supreme Court of the United States in 1908 and subsequently codified in the Copyright Act of 1976,...
).
Protection by a registered design right does not affect any other intellectual property rights in the product, notably
unregistered design rights, patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s and trade marks
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
. The question of copyright protection is left to the
laws of the Member States, which apply varying criteria of originality to the copyright protection of "applied art"; the point, however, is that the existence of the registered design right does not stop the design also being eligible for copyright protection.
Review
The Directive leaves the question of component parts mostly without harmonisation, given the widely varying practices betweenMember States.