WHAT IS A
COMMUNITY DESIGN?
The implementation of the
European Directive offers a relatively simple and cost
effective mechanism for designers worldwide to obtain
protection for their designs in the European Union. Thus,
instead of submitting a separate application in each of
the 15 member countries, a designer can now submit a
single application to obtain design protection throughout
the Union. In the U.S., the requirement for protection
under 35 U.S.C. § 171 is a new, original, and
ornamental design for an article of manufacture.
The requirement for
protection under Article 4 of the European Directive is a
new design that has individual character. While the
requirements for obtaining a design patent are similar,
the mechanics by which such a patent right is obtained
differ greatly between the United States and the European
Union.
The U.S. provides a
substantive examination of both novelty and
nonobviousness, thereby treating the design patent
application just as a utility patent application. The
European Community Design is in effect a registration
that does not undergo any substantive examination with
respect to available prior art. In addition, the U.S.
allows only one design to be claimed in each application,
although a single design may include multiple embodiments
illustrating an overall similar inventive concept. In
contrast, a European Community Design application may
include multiple designs.
Regarding scope, special
situations can arise in which the U.S. and European
design systems yield different protection. Accordingly,
it is not always in the best interest of the designer
merely to submit to the USPTO what was submitted in the
European application and vice versa.
One special situation is
the treatment of component parts under European law and
U.S. law. In order to receive protection from a European
Community Design, a component part must be visible to the
end user during normal use of a complex product. U.S. law
is broader in that visibility only at some point during
the commercial life of the product is sufficient to
qualify the part, i.e., the article of manufacture, for
design protection.
The European Directive
also provides an Unregistered Community Design right that
is effective immediately following the creation of the
design without subsequent action on the part of the
designer.
The U.S. does not
currently provide a similar right under the patent law
system, but copyright protection may apply.
