prop · GP03121 · 2002-03-13 00:00:00 — Om sdana handlingar som avses i punkt 1 enligt lagstiftningen i en medlemsstat inte kunde frhindras fre den dag d ndvndiga bestmmelser fr att flja detta direktiv trdde i kraft, kan de rttigheter som r knutna till mnsterrtten inte beropas fr att frhindra att ngon som hade pbrjat sdana handlingar fre den dagen fortstter med detta. Begrnsning i rttigheter knutna till mnsterrtten De rttigheter som r knutna till mnsterrtten vid registreringen skall inte utvas vad gller a)handlingar som fretas privat och utan vinstsyfte, b)handlingar som fretas i experimentsyfte, c)handlingar som innebr efterbildning i syfte att citera eller undervisa, frutsatt att sdana handlingar r fren- liga med god affrssed och inte omotiverat skadar normalt utnyttjande av mnstret samt p villkor att kllan anges. Vidare skall de rttigheter som r knutna till mns- terrtten vid registreringen inte utvas vad gller a)utrustningen p fartyg och luftfartyg som r registre- rade i ett annat land, nr dessa tillflligt kommer in p den berrda medlemsstatens territorium, b)import till den berrda medlemsstaten av reservdelar och tillbehr fr reparation av sdana fartyg, c)arbete med att reparera sdana fartyg. Fram till dess att ndringar till detta direktiv antas p frslag frn kommissionen i enlighet med bestmmel- serna i artikel 18 skall medlemsstaterna bibehlla sina rttsliga bestmmelser om anvndning av ett mnster till en bestndsdel som anvnds fr att reparera en samman- satt produkt s att den terfr sitt ursprungliga utseende, och de skall endast kunna vidta frndringar i dessa bestmmelser om syftet r att liberalisera marknaden fr sdana delar. Europeiska gemenskapernas officiella tidning L 289/33 Rttigheter som r knutna till en mnsterrtt vid registre- ringen skall inte utstrckas till att omfatta handlingar som rr en produkt i vilken ett mnster inom mnsterrttens skyddsomfng ingr som del eller p vilken detta mnster anvnds nr produkten har slppts ut p marknaden i gemenskapen av innehavaren till mnsterrtten eller med dennes samtycke. Frhllande till andra former av skydd Bestmmelserna i detta direktiv skall inte pverka till- lmpningen av ngra bestmmelser i gemenskapsrtten eller i den berrda medlemsstatens lagstiftning om oregi- strerade mnsterrtter, varumrken eller andra knne- tecken, patent och bruksmnster, typsnitt, civilrttsligt ansvar eller illojal konkurrens. Ett mnster som r skyddat genom att det enligt detta direktiv r registrerat som mnsterrtt i eller fr en medlemsstat skall ocks ge rtt till lagstadgat skydd enligt denna stats upphovsrtt frn den dag d mnstret skapades eller lades fast p ngot stt. Det tillkommer varje enskild medlemsstat att avgra i vilken utstrckning och p vilka villkor ett sdant skydd skall ges, samt ven vilken originalitetsniv som skall krvas. Senast tre r efter det genomfrandedatum som anges i artikel 19 skall kommissionen lgga fram en analys av fljderna av bestmmelserna i detta direktiv fr gemen- skapens industri, i synnerhet fr de industrisektorer som berrs mest, srskilt tillverkarna av sammansatta produkter och bestndsdelar, fr konsumenterna, fr konkurrensen och fr den inre marknadens funktion. Senast ett r senare skall kommissionen, mot bakgrund av sitt samrd med de mest berrda parterna, lgga fram frslag till och rdet om sdana ndringar i detta direktiv som behvs fr att fullflja den inre marknaden med avseende p bestndsdelar i sammansatta produkter och alla andra ndringar den anser ndvndiga. Medlemsstaterna skall stta i kraft de lagar och andra frfattningar som r ndvndiga fr att flja detta direktiv . Nr en medlemsstat antar dessa bestmmelser skall de innehlla en hnvisning till detta direktiv eller tfljas av en sdan hnvisning nr de offentliggrs. Nrmare fre- skrifter om hur hnvisningen skall gras skall varje medlemsstat sjlv utfrda. Medlemsstaterna skall till kommissionen verlmna texterna till de bestmmelser i nationell lagstiftning som de antar inom det omrde som omfattas av detta direktiv. Detta direktiv trder i kraft den tjugonde dagen efter det att det har offentliggjorts i Europeiska gemenskapernas officiella tidning. Detta direktiv riktar sig till medlemsstaterna. L 289/28 DIRECTIVE 98/71/EC OF THE EUROPEAN PARLIAMENT AND OF THE of 13 October 1998 on the legal protection of designs THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing Community and in particular Article 100a thereof, Having regard to the proposal by the Commission (1), Having regard to the opinion of the Economic and (2), Acting in accordance with the procedure laid down in Article 189b of the Treaty (3), in the light of the joint text approved by 1998, (1)Whereas the objectives of the Community, as laid down in the Treaty, include laying the foundations of an ever closer union among the peoples of Europe, fostering closer relations between Member States of the Community, and ensuring the economic and social progress of the Community countries by common action to eliminate the barriers which divide Europe; whereas to that end the Treaty provides for the of an internal market characterised by the abolition of obstacles to the free movement of goods and also for the institution of a system ensuring that competition in the internal market is not distorted; whereas an approximation of the laws of the Member States on the legal protection of designs would further those objectives; (2)Whereas the differences in the legal protection of designs offered by the legislation of the Member States directly affect the and func- tioning of the internal market as regards goods embodying designs; whereas such differences can distort competition within the internal market; (3)Whereas it is therefore necessary for the smooth functioning of the internal market to approximate the design protection laws of the Member States; (1) OJ C 345, 23. 1993, p. 14 and OJ C 142, 14. 1996, p. (2) OJ C 388, 31. 1994, p. 9 and OJ C 110, 2. 1995, p. (3) Opinion of Parliament of 12 October 1995 (OJ C 287, 30. 1995, p. 157), common position of 1997 (OJ C 237, 4. 1997, p. 1), Decision of Parliament of 22 October 1997 (OJ C 339, 10. 1997, p. Decision of Parliament of . Decision of the Council of (4)Whereas, in doing so, it is important to take into consideration the solutions and the advantages with which the Community design system will provide undertakings wishing to acquire design rights; (5)Whereas it is unnecessary to undertake a full-scale approximation of the design laws of the Member States, and it will be sufficient if approximation is limited to those national provisions of law which most directly affect the functioning of the internal market; whereas provisions on sanctions, remedies and enforcement should be left to national law; whereas the objectives of this limited approx- imation cannot be sufficiently achieved by the Member States acting alone; (6)Whereas Member States should accordingly remain free to fix the procedural provisions concerning registration, renewal and invalidation of design rights and provisions concerning the effects of such invalidity; (7)Whereas this Directive does not exclude the application to designs of national or Community legislation providing for protection other than that conferred by registration or publication as design, such as legislation relating to unregistered design rights, trade marks, patents and utility models, unfair competition or civil liability; (8)Whereas, in the absence of harmonisation of copy- right law, it is important to establish the principle of cumulation of protection under specific regis- tered design protection law and under copyright law, whilst leaving Member States free to establish the extent of copyright protection and the condi- tions under which such protection is conferred; (9)Whereas the attainment of the objectives of the internal market requires that the conditions for obtaining a registered design right be identical in all the Member States; whereas to that end it is necessary to give a unitary definition of the notion of design and of the requirements as to novelty and individual character with which registered design rights must comply; L 289/29 (10)Whereas it is essential, in order to facilitate the free movement of goods, to ensure in principle that registered design rights confer upon the right holder equivalent protection in all Member States; (11)Whereas protection is conferred by way of registra- tion upon the right holder for those design features of a product, in whole or in part, which are shown visibly in an application and made available to the public by way of publication or consultation of the relevant file; (12)Whereas protection should not be extended to those component parts which are not visible during normal use of a product, or to those features of such part which are not visible when the part is mounted, or which would not, in themselves, fulfil the requirements as to novelty and individual char- acter; whereas features of design which are excluded from protection for these reasons should not be taken into consideration for the purpose of assessing whether other features of the design fulfil the requirements for protection; (13)Whereas the assessment as to whether a design has individual character should be based on whether the overall impression produced on an informed user viewing the design clearly differs from that produced on him by the existing design corpus, taking into consideration the nature of the product to which the design is applied or in which it is incorporated, and in particular the industrial sector to which it belongs and the degree of freedom of the designer in developing the design; (14)Whereas technological innovation should not be hampered by granting design protection to features dictated solely by a technical function; whereas it is understood that this does not entail that a design must have an aesthetic quality; whereas, likewise, the interoperability of products of different makes should not be hindered by extending protection to the design of mechanical fittings; whereas features of a design which are excluded from protection for these reasons should not be taken into considera- tion for the purpose of assessing whether other features of the design fulfil the requirements for protection; (15)Whereas the mechanical fittings of modular prod- ucts may nevertheless constitute an important element of the innovative characteristics of modular products and present a major marketing asset and therefore should be eligible for protec- tion; (16)Whereas a design right shall not subsist in a design which is contrary to public policy or to accepted principles of morality; whereas this Directive does not constitute a harmonisation of national concepts of public policy or accepted principles of morality; (17)Whereas it is fundamental for the smooth func- tioning of the internal market to unify the term of protection afforded by registered design rights; (18)Whereas the provisions of this Directive are without prejudice to the application of the competition rules under Articles 85 and 86 of the Treaty; (19)Whereas the rapid adoption of this Directive has become a matter of urgency for a number of indus- trial sectors; whereas full-scale approximation of the laws of the Member States on the use of protected designs for the purpose of permitting the repair of a complex product so as to restore its original appearance, where the product incorpor- ating the design or to which the design is applied constitutes a component part of a complex product upon whose appearance the protected design is dependent, cannot be introduced at the present stage; whereas the lack of full-scale approximation of the laws of the Member States on the use of protected designs for such repair of a complex product should not constitute an obstacle to the approximation of those other national provisions of design law which most directly affect the func- tioning of the internal market; whereas for this reason Member States should in the meantime maintain in force any provisions in conformity with the Treaty relating to the use of the design of a component part used for the purpose of the repair of a complex product so as to restore its original appearance, or, if they introduce any new provisions relating to such use, the purpose of these provisions should be only to liberalise the market in such parts; whereas those Member States which, on the date of entry into force of this Directive, do not provide for protection for designs of compon- ent parts are not required to introduce registration of designs for such parts; whereas three years after the implementation date the Commission should submit an analysis of the consequences of the provisions of this Directive for Community industry, for consumers, for competition and for the functioning of the internal market; whereas, in respect of component parts of complex products, the analysis should, in particular, consider harmon- isation on the basis of possible options, including a remuneration system and a limited term of exclus- ivity; whereas, at the latest one year after the submission of its analysis, the Commission should, after consultation with the parties most affected, propose to Parliament and the Council any changes to this Directive needed to complete the internal market in respect of com- ponent parts of complex products, and any other changes which it considers necessary; L 289/30 (20)Whereas the transitional provision in Article 14 concerning the design of a component part used for the purpose of the repair of a complex product so as to restore its original appearance is in no case to be construed as constituting an obstacle to the free movement of a product which constitutes such a component part; (21)Whereas the substantive grounds for refusal of registration in those Member States which provide for substantive examination of applications prior to registration, and the substantive grounds for the invalidation of registered design rights in all the Member States, must be exhaustively enumerated, For the purpose of this Directive: (a)`design© means the appearance of the whole or a part of a product resulting from the features of, in par- ticular, the lines, contours, colours, shape, texture and/ or materials of the product itself and/or its ornamen- tation; (b)`product© means any industrial or handicraft item, including inter alia parts intended to be assembled into a complex product, packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs; (c)`complex product© means a product which is composed of multiple components which can be replaced permitting disassembly and reassembly of the product. 1.This Directive shall apply to: (a)design rights registered with the central industrial property offices of the Member States; (b)design rights registered at the Design Office; (c)design rights registered under international arrange- ments which have effect in a Member State; (d)applications for design rights referred to under (a), (b) and (c). For the purpose of this Directive, design registration shall also comprise the publication following filing of the design with the industrial property office of a in which such publication has the effect of bringing a design right into existence. 1.Member States shall protect designs by registration, and shall confer exclusive rights upon their holders in accordance with the provisions of this Directive. 2.A design shall be protected by a design right to the extent that it is new and has individual character. 3.A design applied to or incorporated in a product which constitutes a component part of a complex product shall only be considered to be new and to have individual character: (a)if the component part, once it has been incorporated into the complex product, remains visible during normal use of the latter, and (b)to the extent that those visible features of the com- ponent part fulfil in themselves the requirements as to novelty and individual character. `Normal use© within the meaning of paragraph (3)(a) shall mean use by the end user, excluding maintenance, servicing or repair work. A design shall be considered new if no identical design has been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority. Designs shall be deemed to be identical if their features differ only in immaterial details. 1.A design shall be considered to have individual char- acter if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority. 2.In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration. For the purpose of applying Articles 4 and 5, a design shall be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, except where these events could not reasonably L 289/31 have become known in the normal course of business to the circles specialised in the sector concerned, operating within the Community, before the date of filing of the application for registration or, if priority is claimed, the date of priority. The design shall not, however, be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality. A disclosure shall not be taken into consideration for the purpose of applying Articles 4 and 5 if a design for which protection is claimed under a registered design right of a has been made available to the public: (a)by the designer, his successor in title, or a third person as a result of information provided or action taken by the designer, or his successor in title; and (b)during the 12-month period preceding the date of filing of the application or, if priority is claimed, the date of priority. Paragraph 2 shall also apply if the design has been made available to the public as a consequence of an abuse in relation to the designer or his successor in title. Designs dictated by their technical function and designs of interconnections 1.A design right shall not subsist in features of appear- ance of a product which are solely dictated by its tech- nical function. 2.A design right shall not subsist in features of appear- ance of a product which must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function. 3.Notwithstanding paragraph 2, a design right shall, under the conditions set out in Articles 4 and 5, subsist in a design serving the purpose of allowing multiple assembly or connection of mutually interchangeable products within a modular system. Designs contrary to public policy or morality A design right shall not subsist in a design which is contrary to public policy or to accepted principles of morality. 1.The scope of the protection conferred by a design right shall include any design which does not produce on the informed user a different overall impression. 2.In assessing the scope of protection, the degree of freedom of the designer in developing his design shall be taken into consideration. Upon registration, a design which meets the requirements of Article 3(2) shall be protected by a design right for one or more periods of five years from the date of filing of the application. The right holder may have the term of protection renewed for one or more periods of five years each, up to a total term of 25 years from the date of filing. Invalidity or refusal of registration A design shall be refused registration, or, if the design has been registered, the design right shall be declared invalid: (a)if the design is not a design within the meaning of Article 1(a); or (b)if it does not fulfil the requirements of Articles 3 to 8; or (c)if the applicant for or the holder of the design right is not entitled to it under the law of the concerned; or (d)if the design is in conflict with a prior design which has been made available to the public after the date of filing of the application or, if priority is claimed, the date of priority, and which is protected from a date prior to the said date by a registered Community design or an application for a registered Community design or by a design right of the concerned, or by an application for such a right. may provide that a design shall be refused registration, or, if the design has been regis- tered, that the design right shall be declared invalid: (a)if a distinctive sign is used in a subsequent design, and Community law or the law of the concerned governing that sign confers on the right holder of the sign the right to prohibit such use; or L 289/32 (b)if the design constitutes an unauthorised use of a work protected under the copyright law of the concerned; or (c)if the design constitutes an improper use of any of the items listed in Article 6b of the Convention for the Protection of Industrial Property, or of badges, emblems and escutcheons other than those covered by Article 6b of the said Convention which are of particular public interest in the concerned. 3.The ground provided for in paragraph 1(c) may be invoked solely by the person who is entitled to the design right under the law of the concerned. 4.The grounds provided for in paragraph 1(d) and in paragraph 2(a) and (b) may be invoked solely by the applicant for or the holder of the conflicting right. 5.The ground provided for in paragraph 2(c) may be invoked solely by the person or entity concerned by the use. 6.Paragraphs 4 and 5 shall be without prejudice to the freedom of Member States to provide that the grounds provided for in paragraphs 1(d) and 2(c) may also be invoked by the appropriate authority of the in question on its own initiative. 7.When a design has been refused registration or a design right has been declared invalid pursuant to para- graph 1(b) or to paragraph 2, the design may be registered or the design right maintained in an amended form, if in that form it complies with the requirements for protec- tion and the identity of the design is retained. Registra- tion or maintenance in an amended form may include registration accompanied by a partial disclaimer by the holder of the design right or entry in the design Register of a court decision declaring the partial invalidity of the design right. 8.Any may provide that, by way of derogation from paragraphs 1 to 7, the grounds for refusal of registration or for invalidation in force in that State prior to the date on which the provisions necessary to comply with this Directive enter into force shall apply to design applications which have been made prior to that date and to resulting registrations. 9.A design right may be declared invalid even after it has lapsed or has been surrendered. Rights conferred by the design right The registration of a design shall confer on its holder the exclusive right to use it and to prevent any third party not having his consent from using it. The aforementioned use shall cover, in particular, the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes.