Design may no longer be commercially valuable after a few years in which case

Design may no longer be commercially valuable after a

This preview shows page 6 - 8 out of 10 pages.

Design may no longer be commercially valuable after a few years, in which case, the expense of further renewals may be avoided Must be renewed every 5 years Lasts 25 years from filing [maximum] Is a monopoly right • Do NOT need to show copying After registration publication can be deferred for up to 30 months from filing [don’t have to pay fee until market assessed] Who is the first owner of the RCD? Same as for the UCD The designer is the owner. If design created during the course of employment following instructions of employer, the employer will be the first owner unless agreement otherwise If commissioned the right belongs to the designer not the commissioner. Community design [registered and unregistered] Protection does not extend to Acts done privately & for non- commercial purposes Experimental purposes Reproducing for teaching if not prejudice normal exploitation • Repair Prior use but if copied and used in the period of grace, can bring action under UCD - the registered Community design gives the exclusive right to prevent third parties using the design without the right holder’s consent. There is no need to show copying and this means that the right is a monopoly right. - The right to prevent third parties using the design extends also to the holders of conflicting registered designs having later registration dates. As neither the Office of Harmonisation for the Internal Market (Trade Marks and Designs) (OHIM) nor the UK Intellectual Property Office (UK IPO) examine applications to register designs for novelty and individual character, conflicts between registered designs are possible. Of course, the holder of the earlier design may bring invalidity proceedings after the later design has been registered. - As regards an innocent defendant who uses the design or one not differing in material details and who has no knowledge of the registered design, this is not as severe as it might seem at first sight. This is because registered designs are published and may be searched for (including online). Anyone considering applying a design to a product has the opportunity to check to make sure there are no registered designs that are the same or very similar. Indeed, this is a recommended practical step that anyone contemplating launching a new product should take, ideally before the design process commences or has got beyond a rough draft. Page of 6 10
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- There is a right for a third party to continue prior use. This applies where the third party has commenced use of the design or made serious and effective preparations to do so before the date of ling the application to register (or priority date if there is one) - This covers the situation where someone, without knowledge of the registered design, coincidentally uses or make serious and effective preparations to use a design that is identical to or only differs from it in immaterial details. The third party must not have copied this design from
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