A multi-perspective view on visibility in EU design law

Journal of Intellectual Property Law & Practice 2024, t. 19, nr 8, s. 648-657.

In EU design law, the parameter of visibility must multitask. This article aims to discuss its meaning and legal consequences against the current and amended legal provisions for designs. As the legal notion of a design is the ‘appearance of a product’, visibility has been woven into design features’ requirement of perceptibility to the eye. Visibility also aids in the identification of the object of protection for a registered design through the registration documentation and, analogically, the identification of an unregistered design through proofs of disclosure. By this token, design features visibly displayed by the representation/disclosure of a design determine the comparison between the overall impression of a design and another design/product for the purposes of invalidity or enforcement. The Court of Justice of the European Union (CJEU) has also recently framed visibility in the perspective of evidentiary issues of technical functionality. Visibility represents a prerequisite for the assessment of novelty and/or individual character of a design of a component part of a complex product. This article looks into the CJEU’s guidance concerning the protection of parts of products, including the interpretation of the criterion of visibility during normal use that applies to component parts.

Prior art in EU design law and its worldwide implications : taking advantage of flexibilities or being obstructed by ambiguities

Design Law : Global Law and Practice / Dana Beldiman (ed.) – Cheltenham: Edward Elgar Publishing Limited, 2024, s. 503-540.

The scope of prior art is instrumental in assessing the validity of design rights. Although novelty, being the main requirement of granting protection, is a common denominator of design legislation worldwide, the parameters determining the state of art vary. This work explores how the EU harmonized design regime defines prior art. Specifically, the chapter discusses the EU-model of relative novelty in terms of what constitutes relevant disclosure, normative exceptions to disclosure and particularities related to disclosure of unregistered designs. The chapter also explores the subject-matter which can serve as term of comparison between a contested design and a design from the prior art. The concepts of design and prior art serve to accentuate the specifics of non-EU design laws in the final part that explores the interaction between EU and non-EU design systems. The concluding remarks advocate for providing more coherent legal solutions among national laws to benefit global business.