IP/N/1/EU/D/2  
 
15 April 2013  
(13-1966)  Page: 1/26  
Council for Trade-Related Aspects 
of Intellectual Property Rights  Original: English/anglais/inglés  
 
MAIN DEDICATED INTELLECTUAL PROPERTY LAWS AND 
REGULATIONS NOTIFIED UNDER ARTICLE 63.2 
OF THE AGREEMENT 
EUROPEAN UNION 
This document reproduces the text1 of Council Regulation (EC) No 6/2002 of 12 December 2001 
on Community designs, as notified by the Euro pean Union on 20 March 2013 under Article 63.2 of 
the Agreement (see document IP/N/1/EU/1). 
 
Conseil des aspects des droits de propriété 
intellectuelle qui touchent au commerce 
PRINCIPALES LOIS ET RÉGLEMENTATIONS CONSACRÉES À 
LA PROPRIÉTÉ INTELLECTUELLE NOTIFIÉES AU TITRE 
DE L'ARTICLE 63:2 DE L'ACCORD 
UNION EUROPÉENNE  
Le présent document contient le texte1 du Règlement (CE) n° 6/2002 du Conseil du 
12 décembre 2001 sur les dessins ou modèles communautaires, notifié par l'Union européenne le 20 mars 2013 au titre de l'article 63:2 de l'Accord (voir le document IP/N/1/EU/1). 
 
Consejo de los Aspectos de los Derechos de Propiedad 
Intelectual relacionados con el Comercio 
PRINCIPALES LEYES Y REGLAMENTOS DEDICADOS A LA 
PROPIEDAD INTELECTUAL NOTIFICADOS EN VIRTUD 
DEL PÁRRAFO 2 DEL ARTÍCULO 63 DEL ACUERDO 
UNIÓN EUROPEA  
En el presente documento se reproduce el texto1 del Reglamento (CE) N° 6/2002 del Consejo, de 
12 de diciembre de 2001, sobre los dibujos y modelos comunitarios, notificado por la Unión Europea el 20 de marzo de 2013 en virtud de lo dispuesto en el párrafo 2 del artículo 63 del 
Acuerdo (véase el documento IP/N/1/EU/1).  
                                               
1 In English only./En anglais seulement./En inglés solamente. IP/N/1/EU/D/2 
 
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PP 3 à 26 - Offset (fichier Pdf joint) PP 3-26 - Offset (fichero Pdf adjunto) EN OfficialJournaloftheEuropeanCommunities 5.1.2002 L3/1
I
(Acts whose publication is obligatory)
COUNCIL REGULATION (EC) No 6/2002
of 12 December 2001
on Community designs
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular Article 308 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Having regard to the opinion of the Economic and Social
Committee(3),
Whereas:
(1)A unified system for obtaining a Community design towhich uniform protection is given with uniform effectthroughouttheentireterritoryoftheCommunitywouldfurthertheobjectivesoftheCommunityaslaiddowninthe Treaty.
(2)Only the Benelux countries have introduced a uniformdesignprotectionlaw.InalltheotherMemberStatestheprotection of designs is a matter for the relevantnational law and is confined to the territory of theMemberStateconcerned.Identicaldesignsmaybethere-foreprotecteddifferentlyindifferentMemberStatesandfor the benefit of different owners. This inevitably leadsto conflicts in the course of trade between MemberStates.
(3)The substantial differences between Member States'design laws prevent and distort Community-widecompetition. In comparison with domestic trade in, andcompetition between, products incorporating a design,trade and competition within the Community areprevented and distorted by the large number of applica-tions, offices, procedures, laws, nationally circumscribedexclusive rights and the combined administrativeexpensewithcorrespondinglyhighcostsandfeesfortheapplicant. Directive 98/71/EC of the European Parlia-ment and of the Council of 13 October 1998 on thelegal protection of designs(
4) contributes to remedying
this situation.
(4)The effect of design protection being limited to theterritoryoftheindividualMemberStateswhetherornottheir laws are approximated, leads to a possible divisionoftheinternalmarketwithrespecttoproductsincorpor-ating a design which is the subject of national rightsheld by different individuals, and hence constitutes anobstacle to the free movement of goods.
(5)ThiscallsforthecreationofaCommunitydesignwhichisdirectlyapplicableineachMemberState,becauseonlyin this way will it be possible to obtain, through oneapplicationmadetotheOfficeforHarmonisationintheInternal Market (Trade Marks and Design) in accordancewith a single procedure under one law, one design rightfor one area encompassing all Member States.
(6)Since the objectives of the proposed action, namely, theprotection of one design right for one area encom-passing all the Member States, cannot be sufficientlyachieved by the Member States by reason of the scaleand the effects of the creation of a Community designand a Community design authority and can therefore,and can therefore be better achieved at Communitylevel, the Community may adopt measures, in accord-ance with the principle of subsidiarity as set out inArticle 5 of the Treaty. In accordance with the principleofproportionality,assetoutinthatArticle,thisRegula-tion does not go beyond what is necessary in order toachieve those objectives.
(7)Enhanced protection for industrial design not onlypromotesthecontributionofindividualdesignerstothesum of Community excellence in the field, but alsoencourages innovation and development of new prod-ucts and investment in their production.
(8)Consequently a more accessible design-protectionsystem adapted to the needs of the internal market isessential for Community industries.
(1) OJ C 29, 31.1.1994, p. 20 and OJ C 248, 29.8.2000, p. 3.
(2) OJ C 67, 1.3.2001, p. 318.
(3) OJ C 110, 2.5.1995 and OJ C 75, 15.3.2000, p. 35. (4) OJ L 289, 28.10.1998, p. 28.
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(9)The substantive provisions of this Regulation on design
law should be aligned with the respective provisions inDirective 98/71/EC.
(10)Technological innovation should not be hampered bygranting design protection to features dictated solely bya technical function. It is understood that this does notentail that a design must have an aesthetic quality. Like-wise, the interoperability of products of different makesshould not be hindered by extending protection to thedesign of mechanical fittings. Consequently, thosefeatures of a design which are excluded from protectionforthosereasonsshouldnotbetakenintoconsiderationfor the purpose of assessing whether other features ofthe design fulfil the requirements for protection.
(11)Themechanicalfittingsofmodularproductsmaynever-theless constitute an important element of the innova-tive characteristics of modular products and present amajor marketing asset, and therefore should be eligiblefor protection.
(12)Protection should not be extended to those componentparts which are not visible during normal use of aproduct, nor to those features of such part which arenot visible when the part is mounted, or which wouldnot, in themselves, fulfil the requirements as to noveltyand individual character. Therefore, those features ofdesign which are excluded from protection for thesereasons should not be taken into consideration for thepurpose of assessing whether other features of thedesign fulfil the requirements for protection.
(13)Full-scale approximation of the laws of the MemberStatesontheuseofprotecteddesignsforthepurposeofpermitting the repair of a complex product so as torestore its original appearance, where the design isapplied to or incorporated in a product which consti-tutes a component part of a complex product uponwhose appearance the protected design is dependent,could not be achieved through Directive 98/71/EC.Within the framework of the conciliation procedure onthe said Directive, the Commission undertook to reviewthe consequences of the provisions of that Directivethree years after the deadline for transposition of theDirective in particular for the industrial sectors whichare most affected. Under these circumstances, it isappropriate not to confer any protection as aCommunity design for a design which is applied to orincorporated in a product which constitutes a compo-nentpartofacomplexproductuponwhoseappearancethe design is dependent and which is used for thepurpose of the repair of a complex product so as torestore its original appearance, until the Council hasdecided its policy on this issue on the basis of aCommission proposal.
(14)The assessment as to whether a design has individualcharacter should be based on whether the overallimpression produced on an informed user viewing thedesign clearly differs from that produced on him by theexisting design corpus, taking into consideration thenature of the product to which the design is applied orin which it is incorporated, and in particular the indus-trial sector to which it belongs and the degree offreedom of the designer in developing the design.
(15)ACommunitydesignshould,asfaraspossible,servetheneeds of all sectors of industry in the Community.
(16)Someofthosesectorsproducelargenumbersofdesignsforproductsfrequentlyhavingashortmarketlifewhereprotectionwithouttheburdenofregistrationformalitiesis an advantage and the duration of protection is oflesser significance. On the other hand, there are sectorsof industry which value the advantages of registrationfor the greater legal certainty it provides and whichrequire the possibility of a longer term of protectioncorresponding to the foreseeable market life of theirproducts.
(17)This calls for two forms of protection, one being ashort-term unregistered design and the other being alonger term registered design.
(18)A registered Community design requires the creationandmaintenanceofaregisterinwhichwillberegisteredall those applications which comply with formal condi-tionsandwhichhavebeenaccordedadateoffiling.Thisregistration system should in principle not be basedupon substantive examination as to compliance withrequirementsforprotectionpriortoregistration,therebykeepingtoaminimumtheregistrationandotherproce-dural burdens on applicants.
(19)A Community design should not be upheld unless thedesign is new and unless it also possesses an individualcharacter in comparison with other designs.
(20)Itisalsonecessarytoallowthedesignerorhissuccessorintitletotesttheproductsembodyingthedesigninthemarket place before deciding whether the protectionresulting from a registered Community design is desir-able. To this end it is necessary to provide that disclo-sures of the design by the designer or his successor intitle, or abusive disclosures during a period of 12months prior to the date of the filing of the applicationfor a registered Community design should not be preju-dicialinassessingthenoveltyortheindividualcharacterof the design in question.
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(21)The exclusive nature of the right conferred by the regis-
tered Community design is consistent with its greaterlegal certainty. It is appropriate that the unregisteredCommunity design should, however, constitute a rightonly to prevent copying. Protection could not thereforeextend to design products which are the result of adesign arrived at independently by a second designer.This right should also extend to trade in productsembodying infringing designs.
(22)The enforcement of these rights is to be left to nationallaws. It is necessary therefore to provide for some basicuniform sanctions in all Member States. These shouldmake it possible, irrespective of the jurisdiction underwhichenforcementissought,tostoptheinfringingacts.
(23)Any third person who can establish that he has in goodfaith commenced use even for commercial purposeswithin the Community, or has made serious and effec-tivepreparationstothatend,ofadesignincludedwithinthe scope of protection of a registered Communitydesign, which has not been copied from the latter, maybe entitled to a limited exploitation of that design.
(24)It is a fundamental objective of this Regulation that theprocedure for obtaining a registered Community designshouldpresenttheminimumcostanddifficultytoappli-cants, so as to make it readily available to small andmedium-sized enterprises as well as to individualdesigners.
(25)Those sectors of industry producing large numbers ofpossiblyshort-liveddesignsovershortperiodsoftimeofwhichonlysomemaybeeventuallycommercialisedwillfind advantage in the unregistered Community design.Furthermore, there is also a need for these sectors tohave easier recourse to the registered Communitydesign.Therefore,theoptionofcombininganumberofdesigns in one multiple application would satisfy thatneed. However, the designs contained in a multipleapplication may be dealt with independently of eachother for the purposes of enforcement of rights,licensing, rights in rem, levy of execution, insolvencyproceedings, surrender, renewal, assignment, deferredpublication or declaration of invalidity.
(26)The normal publication following registration of aCommunitydesigncouldinsomecasesdestroyorjeop-ardise the success of a commercial operation involvingthedesign.Thefacilityofadefermentofpublicationfora reasonable period affords a solution in such cases.
(27)Aprocedureforhearingactionsconcerningvalidityofaregistered Community design in a single place wouldbring savings in costs and time compared with proced-ures involving different national courts.
(28)It is therefore necessary to provide safeguards includingarightofappealtoaBoardofAppeal,andultimatelytothe Court of Justice. Such a procedure would assist thedevelopment of uniform interpretation of the require-ments governing the validity of Community designs.
(29)It is essential that the rights conferred by a Communitydesign can be enforced in an efficient mannerthroughout the territory of the Community.
(30)The litigation system should avoid as far as possible‘forum shopping’. It is therefore necessary to establishclear rules of international jurisdiction.
(31)This Regulation does not preclude the application todesigns protected by Community designs of the indus-trialpropertylawsorotherrelevantlawsoftheMemberStates, such as those relating to design protectionacquiredbyregistrationorthoserelatingtounregistereddesigns, trade marks, patents and utility models, unfaircompetition or civil liability.
(32)In the absence of the complete harmonisation of copy-right law, it is important to establish the principle ofcumulation of protection under the Community designand under copyright law, whilst leaving Member Statesfree to establish the extent of copyright protection andtheconditionsunderwhichsuchprotectionisconferred.
(33)The measures necessary for the implementation of thisRegulation should be adopted in accordance withCouncil Decision 1999/468/EC of 28 June 1999 layingdown the procedures for the exercise of implementingpowers conferred on the Commission(
1),
HAS ADOPTED THIS REGULATION:
TITLE I
GENERAL PROVISIONS
Article 1
Community design
1. A design which complies with the conditions containedin this Regulation is hereinafter referred to as a ‘Communitydesign’.
(1) OJ L 184, 17.7.1999, p. 23.
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2. A design shall be protected:
(a) byan‘unregisteredCommunitydesign’,ifmadeavailableto
the public in the manner provided for in this Regulation;
(b) by a ‘registered Community design’, if registered in the
manner provided for in this Regulation.
3. A Community design shall have a unitary character. It
shall have equal effect throughout the Community. It shall notbe registered, transferred or surrendered or be the subject of adecision declaring it invalid, nor shall its use be prohibited,saveinrespectofthewholeCommunity.Thisprincipleanditsimplications shall apply unless otherwise provided in thisRegulation.
Article 2
Office
The Office for Harmonisation in the Internal Market (TradeMarksandDesigns),hereinafterreferredtoas‘theOffice’,insti-tuted by Council Regulation (EC) No 40/94 of 20 December1993 on the Community trade mark(
1), hereinafter referred to
as the ‘Regulation on the Community trade mark’, shall carryout the tasks entrusted to it by this Regulation.
TITLE II
THE LAW RELATING TO DESIGNS
Section 1
Requirements for protection
Article 3
Definitions
For the purposes of this Regulation:
(a) ‘design’ means the appearance of the whole or a part of a
product resulting from the features of, in particular, thelines, contours, colours, shape, texture and/or materials ofthe product itself and/or its ornamentation;
(b) ‘product’meansanyindustrialorhandicraftitem,including
inter aliaparts intended to be assembled into a complex
product, packaging, get-up, graphic symbols and typo-graphic typefaces, but excluding computer programs;
(c) ‘complex product’ means a product which is composed of
multiple components which can be replaced permittingdisassembly and re-assembly of the product.Article 4
Requirements for protection
1. A design shall be protected by a Community design tothe extent that it is new and has individual character.
2. A design applied to or incorporated in a product which
constitutes a component part of a complex product shall onlybe 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 ofthe latter; and
(b) to the extent that those visible features of the component
partfulfilinthemselvestherequirementsastonoveltyandindividual character.
3. ‘Normaluse’withinthemeaningofparagraph(2)(a)shallmean use by the end user, excluding maintenance, servicing orrepair work.
Article 5
Novelty
1. A design shall be considered to be new if no identicaldesign has been made available to the public:
(a) in the case of an unregistered Community design, before
the date on which the design for which protection isclaimed has first been made available to the public;
(b) in the case of a registered Community design, before the
date of filing of the application for registration of thedesign for which protection is claimed, or, if priority isclaimed, the date of priority.
2. Designs shall be deemed to be identical if their featuresdiffer only in immaterial details.
Article 6
Individual character
1. A design shall be considered to have individual characterif the overall impression it produces on the informed userdiffersfromtheoverallimpressionproducedonsuchauserbyany design which has been made available to the public:
(a) in the case of an unregistered Community design, before
the date on which the design for which protection isclaimed has first been made available to the public;
(b) in the case of a registered Community design, before the
dateoffilingtheapplicationforregistrationor,ifapriorityis claimed, the date of priority.
2. Inassessingindividualcharacter,thedegreeoffreedomofthe designer in developing the design shall be taken intoconsideration.
(1) OJ L 11, 14.1.1994, p. 1. Regulation as last amended by Regulation
(EC) No 3288/94 (OJ L 349, 31.12.1994, p. 83).
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Article 7
Disclosure
1. For the purpose of applying Articles 5 and 6, a design
shallbedeemedtohavebeenmadeavailabletothepublicifithas been published following registration or otherwise, orexhibited, used in trade or otherwise disclosed, before the datereferred to in Articles 5(1)(a) and 6(1)(a) or in Articles 5(1)(b)and 6(1)(b), as the case may be, except where these eventscould not reasonably have become known in the normalcourse of business to the circles specialised in the sectorconcerned, operating within the Community. The design shallnot, however, be deemed to have been made available to thepublic for the sole reason that it has been disclosed to a thirdperson under explicit or implicit conditions of confidentiality.
2. Adisclosureshallnotbetakenintoconsiderationforthe
purposeofapplyingArticles5and6andifadesignforwhichprotectionisclaimedunderaregisteredCommunitydesignhasbeen made available to the public:
(a) bythedesigner,hissuccessorintitle,orathirdpersonasa
result of information provided or action taken by thedesigner or his successor in title; and
(b) during the 12-month period preceding the date of filing of
the application or, if a priority is claimed, the date ofpriority.
3. Paragraph 2 shall also apply if the design has been madeavailabletothepublicasaconsequenceofanabuseinrelationto the designer or his successor in title.
Article 8
Designs dictated by their technical function and designs of
interconnections
1. A Community design shall not subsist in features ofappearance of a product which are solely dictated by its tech-nical function.
2. A Community design shall not subsist in features of
appearanceofaproductwhichmustnecessarilybereproducedin their exact form and dimensions in order to permit theproduct in which the design is incorporated or to which it isapplied to be mechanically connected to or placed in, aroundoragainstanotherproductsothateitherproductmayperformits function.
3. Notwithstanding paragraph 2, a Community design shall
under the conditions set out in Articles 5 and 6 subsist in adesign serving the purpose of allowing the multiple assemblyor connection of mutually interchangeable products within amodular system.Article 9
Designs contrary to public policy or morality
A Community design shall not subsist in a design which iscontrary to public policy or to accepted principles of morality.
Section 2
Scope and term of protection
Article 10
Scope of protection
1. The scope of the protection conferred by a Communitydesignshallincludeanydesignwhichdoesnotproduceontheinformed user a different overall impression.
2. In assessing the scope of protection, the degree of
freedomofthedesignerindevelopinghisdesignshallbetakeninto consideration.
Article 11
Commencement andterm of protection of the un-
registeredCommunity d esign
1. A design which meets the requirements under Section 1shall be protected by an unregistered Community design for aperiodofthreeyearsasfromthedateonwhichthedesignwasfirst made available to the public within the Community.
2. Forthepurposeofparagraph1,adesignshallbedeemed
to have been made available to the public within theCommunityifithasbeenpublished,exhibited,usedintradeorotherwisedisclosedinsuchawaythat,inthenormalcourseofbusiness,theseeventscouldreasonablyhavebecomeknowntothecirclesspecialisedinthesectorconcerned,operatingwithinthe Community. The design shall not, however, be deemed tohavebeenmadeavailabletothepublicforthesolereasonthatithasbeendisclosedtoathirdpersonunderexplicitorimplicitconditions of confidentiality.
Article 12
Commencement andterm of protection of the registered
Community design
Upon registration by the Office, a design which meets therequirementsunderSection1shallbeprotectedbyaregisteredCommunity design for a period of five years as from the dateof the filing of the application. The right holder may have theterm of protection renewed for one or more periods of fiveyears each, up to a total term of 25 years from the date offiling.
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Article 13
Renewal
1. Registration of the registered Community design shall be
renewed at the request of the right holder or of any personexpressly authorised by him, provided that the renewal fee hasbeen paid.
2. The Office shall inform the right holder of the registered
Community design and any person having a right entered inthe register of Community designs, referred to in Article 72,hereafter referred to as the ‘register’ in respect of the registeredCommunity design, of the expiry of the registration in goodtime before the said expiry. Failure to give such informationshall not involve the responsibility of the Office.
3. The request for renewal shall be submitted and the
renewal fee paid within a period of six months ending on thelastdayofthemonthinwhichprotectionends.Failingthis,therequest may be submitted and the fee paid within a furtherperiod of six months from the day referred to in the firstsentence, provided that an additional fee is paid within thisfurther period.
4. Renewal shall take effect from the day following the date
onwhichtheexistingregistrationexpires.Therenewalshallbeentered in the register.
Section 3
Right to the Community design
Article 14
Right to the Community design
1. The right to the Community design shall vest in thedesigner or his successor in title.
2. If two or more persons have jointly developed a design,
the right to the Community design shall vest in them jointly.
3. However,whereadesignisdevelopedbyanemployeein
the execution of his duties or following the instructions givenby his employer, the right to the Community design shall vestin the employer, unless otherwise agreed or specified undernational law.
Article 15
Claims relating to the entitlement to a Community design
1. If an unregistered Community design is disclosed or
claimedby,oraregisteredCommunitydesignhasbeenappliedfororregisteredinthenameof,apersonwhoisnotentitledtoit under Article 14, the person entitled to it under that provi-sion may, without prejudice to any other remedy which maybe open to him, claim to become recognised as the legitimateholder of the Community design.2. Where a person is jointly entitled to a Communitydesign,thatpersonmay,inaccordancewithparagraph1,claimto become recognised as joint holder.
3. Legal proceedings under paragraphs 1 or 2 shall be
barred three years after the date of publication of a registeredCommunity design or the date of disclosure of an unregisteredCommunitydesign.ThisprovisionshallnotapplyifthepersonwhoisnotentitledtotheCommunitydesignwasactinginbadfaithatthetimewhensuchdesignwasappliedforordisclosedor was assigned to him.
4. In the case of a registered Community design, the
following shall be entered in the register:
(a) thementionthatlegalproceedingsunderparagraph1have
been instituted;
(b) the final decision or any other termination of the proceed-
ings;
(c) any change in the ownership of the registered Community
design resulting from the final decision.
Article 16
Effects of a judgement on entitlement to a registered
Community design
1. Where there is a complete change of ownership of aregistered Community design as a result of legal proceedingsunder Article 15(1), licences and other rights shall lapse uponthe entering in the register of the person entitled.
2. If, before the institution of the legal proceedings under
Article 15(1) has been registered, the holder of the registeredCommunity design or a licensee has exploited the designwithin the Community or made serious and effective prepara-tions to do so, he may continue such exploitation providedthat he requests within the period prescribed by the imple-menting regulation a non-exclusive licence from the newholder whose name is entered in the register. The licence shallbegrantedforareasonableperiodanduponreasonableterms.
3. Paragraph2shallnotapplyiftheholderoftheregistered
Communitydesignorthelicenseewasactinginbadfaithatthetime when he began to exploit the design or to make prepara-tions to do so.
Article 17
Presumption in favour of the registeredhold er of the
design
ThepersoninwhosenametheregisteredCommunitydesignisregistered or, prior to registration, the person in whose namethe application is filed, shall be deemed to be the personentitled in any proceedings before the Office as well as in anyother proceedings.
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Article 18
Right of the designer to be cited
The designer shall have the right, in the same way as the
applicant for or the holder of a registered Community design,to be cited as such before the Office and in the register. If thedesign is the result of teamwork, the citation of the team mayreplace the citation of the individual designers.
Section 4
Effects of the Community design
Article 19
Rights conferredby the Community d esign
1. AregisteredCommunitydesignshallconferonitsholderthe exclusive right to use it and to prevent any third party nothavinghisconsentfromusingit.Theaforementioneduseshallcover, in particular, the making, offering, putting on themarket, importing, exporting or using of a product in whichthedesignisincorporatedortowhichitisapplied,orstockingsuch a product for those purposes.
2. An unregistered Community design shall, however,
confer on its holder the right to prevent the acts referred to inparagraph 1 only if the contested use results from copying theprotected design.
The contested use shall not be deemed to result from copying
the protected design if it results from an independent work ofcreation by a designer who may be reasonably thought not tobefamiliarwiththedesignmadeavailabletothepublicbytheholder.
3. Paragraph 2 shall also apply to a registered Community
design subject to deferment of publication as long as therelevant entries in the register and the file have not been madeavailable to the public in accordance with Article 50(4).
Article 20
Limitation of the rights conferredby a Community d esign
1. TherightsconferredbyaCommunitydesignshallnotbe
exercised in respect of:
(a) acts done privately and for non-commercial purposes;
(b) acts done for experimental purposes;
(c) actsofreproductionforthepurposeofmakingcitationsor
of teaching, provided that such acts are compatible withfair trade practice and do not unduly prejudice the normalexploitationofthedesign,andthatmentionismadeofthesource.2. In addition, the rights conferred by a Community designshall not be exercised in respect of:
(a) the equipment on ships and aircraft registered in a third
country when these temporarily enter the territory of theCommunity;
(b) the importation in the Community of spare parts and
accessories for the purpose of repairing such craft;
(c) the execution of repairs on such craft.
Article 21
Exhaustion of rights
The rights conferred by a Community design shall not extendto acts relating to a product in which a design included withinthe scope of protection of the Community design is incor-porated or to which it is applied, when the product has beenput on the market in the Community by the holder of theCommunity design or with his consent.
Article 22
Rights of prior use in respect of a registeredCommunity
design
1. A right of prior use shall exist for any third person whocanestablishthatbeforethedateoffilingoftheapplication,or,if a priority is claimed, before the date of priority, he has ingood faith commenced use within the Community, or hasmadeseriousandeffectivepreparationstothatend,ofadesignincluded within the scope of protection of a registeredCommunitydesign,whichhasnotbeencopiedfromthelatter.
2. The right of prior use shall entitle the third person to
exploit the design for the purposes for which its use had beeneffected, or for which serious and effective preparations hadbeen made, before the filing or priority date of the registeredCommunity design.
3. The right of prior use shall not extend to granting a
licence to another person to exploit the design.
4. Therightofpriorusecannotbetransferredexcept,where
the third person is a business, along with that part of thebusiness in the course of which the act was done or thepreparations were made.
Article 23
Government use
Any provision in the law of a Member State allowing use ofnational designs by or for the government may be applied toCommunity designs, but only to the extent that the use isnecessary for essential defence or security needs.
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Section 5
Invalidity
Article 24
Declaration of invalidity
1. A registered Community design shall be declared invalid
on application to the Office in accordance with the procedurein Titles VI and VII or by a Community design court on thebasis of a counterclaim in infringement proceedings.
2. A Community design may be declared invalid even after
the Community design has lapsed or has been surrendered.
3. An unregistered Community design shall be declared
invalid by a Community design court on application to such acourt or on the basis of a counterclaim in infringementproceedings.
Article 25
Grounds for invalidity
1. ACommunitydesignmaybedeclaredinvalidonlyinthefollowing cases:
(a) if the design does not correspond to the definition under
Article 3(a);
(b) if it does not fulfil the requirements of Articles 4 to 9;
(c) if, by virtue of a court decision, the right holder is not
entitled to the Community design under Article 14;
(d) if the Community design is in conflict with a prior design
which has been made available to the public after the dateof filing of the application or, if a priority is claimed, thedate of priority of the Community design, and which isprotected from a date prior to the said date by a registeredCommunity design or an application for such a design, orby a registered design right of a Member State, or by anapplication for such a right;
(e) if a distinctive sign is used in a subsequent design, and
Community law or the law of the Member State governingthatsignconfersontherightholderofthesigntherighttoprohibit such use;
(f) if the design constitutes an unauthorised use of a work
protected under the copyright law of a Member State;
(g) if the design constitutes an improper use of any of the
items listed in Article 6ter of the ‘Paris Convention’ for theProtectionofIndustrialPropertyhereafterreferredtoasthe‘Paris Convention’, or of badges, emblems and escutcheonsotherthanthosecoveredbythesaidArticle6terandwhichare of particular public interest in a Member State.
2. The ground provided for in paragraph (1)(c) may beinvokedsolelybythepersonwhoisentitledtotheCommunitydesign under Article 14.
3. The grounds provided for in paragraph (1)(d), (e) and (f)
may be invoked solely by the applicant for or holder of theearlier right.4. The ground provided for in paragraph (1)(g) may beinvoked solely by the person or entity concerned by the use.
5. Paragraphs 3 and 4 shall be without prejudice to the
freedom of Member States to provide that the groundsprovidedforinparagraphs1(d)and(g)mayalsobeinvokedbythe appropriate authority of the Member State in question onits own initiative.
6. A registered Community design which has been declared
invalid pursuant to paragraph (1)(b), (e), (f) or (g) may bemaintained in an amended form, if in that form it complieswith the requirements for protection and the identity of thedesign is retained. ‘Maintenance’ in an amended form mayinclude registration accompanied by a partial disclaimer by theholder of the registered Community design or entry in theregisterofacourtdecisionoradecisionbytheOfficedeclaringthe partial invalidity of the registered Community design.
Article 26
Consequences of invalidity
1. ACommunitydesignshallbedeemednottohavehad,asfrom the outset, the effects specified in this Regulation, to theextent that it has been declared invalid.
2. Subjecttothenationalprovisionsrelatingeithertoclaims
for compensation for damage caused by negligence or lack ofgoodfaithonthepartoftheholderoftheCommunitydesign,or to unjust enrichment, the retroactive effect of invalidity ofthe Community design shall not affect:
(a) any decision on infringement which has acquired the
authorityofafinaldecisionandbeenenforcedpriortotheinvalidity decision;
(b) any contract concluded prior to the invalidity decision, in
so far as it has been performed before the decision;however, repayment, to an extent justified by the circum-stances, of sums paid under the relevant contract may beclaimed on grounds of equity.
TITLE III
COMMUNITY DESIGNS AS OBJECTS OF PROPERTY
Article 27
Dealing with Community designs as national design rights
1. UnlessArticles28,29,30,31and32provideotherwise,
a Community design as an object of property shall be dealtwith in its entirety, and for the whole area of the Community,as a national design right of the Member State in which:
(a) theholderhashisseatorhisdomicileontherelevantdate;
or
(b) wherepoint(a)doesnotapply,theholderhasanestablish-
ment on the relevant date.
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2. In the case of a registered Community design, paragraph
1 shall apply according to the entries in the register.
3. In the case of joint holders, if two or more of them fulfil
theconditionunderparagraph1,theMemberStatereferredtoin that paragraph shall be determined:
(a) in the case of an unregistered Community design, by refer-
ence to the relevant joint holder designated by them bycommon agreement;
(b) in the case of a registered Community design, by reference
to the first of the relevant joint holders in the order inwhich they are mentioned in the register.
4. Where paragraphs 1, 2 and 3 do not apply, the MemberState referred to in paragraph 1 shall be the Member State inwhich the seat of the Office is situated.
Article 28
Transfer of the registeredCommunity d esign
The transfer of a registered Community design shall be subjectto the following provisions:
(a) at the request of one of the parties, a transfer shall be
entered in the register and published;
(b) until such time as the transfer has been entered in the
register, the successor in title may not invoke the rightsarising from the registration of the Community design;
(c) wheretherearetimelimitstobeobservedindealingswith
the Office, the successor in title may make the corre-sponding statements to the Office once the request forregistration of the transfer has been received by the Office;
(d) all documents which by virtue of Article 66 require noti-
fication to the holder of the registered Community designshall be addressed by the Office to the person registered asholder or his representative, if one has been appointed.
Article 29
Rights in rem on a registeredCommunity d esign
1. A registered Community design may be given as securityor be the subject of rights in rem.
2. On request of one of the parties, the rights mentioned inparagraph 1 shall be entered in the register and published.
Article 30
Levy of execution
1. A registered Community design may be levied in execu-tion.
2. As regards the procedure for levy of execution in respect
ofaregisteredCommunitydesign,thecourtsandauthoritiesofthe Member State determined in accordance with Article 27shall have exclusive jurisdiction.3. On request of one of the parties, levy of execution shallbe entered in the register and published.
Article 31
Insolvency proceedings
1. The only insolvency proceedings in which a Communitydesign may be involved shall be those opened in the MemberStatewithintheterritoryofwhichthecentreofadebtor'smaininterests is situated.
2. In the case of joint proprietorship of a Community
design, paragraph 1 shall apply to the share of the jointproprietor.
3. Where a Community design is involved in insolvency
proceedings,onrequestofthecompetentnationalauthorityanentry to this effect shall be made in the register and publishedintheCommunityDesignsBulletinreferredtoinArticle73(1).
Article 32
Licensing
1. A Community design may be licensed for the whole orpart of the Community. A licence may be exclusive or non-exclusive.
2. Without prejudice to any legal proceedings based on the
law of contract, the holder may invoke the rights conferred bythe Community design against a licensee who contravenes anyprovision in his licensing contract with regard to its duration,the form in which the design may be used, the range ofproducts for which the licence is granted and the quality ofproducts manufactured by the licensee.
3. Without prejudice to the provisions of the licensing
contract, the licensee may bring proceedings for infringementof a Community design only if the right holder consentsthereto. However, the holder of an exclusive licence may bringsuch proceedings if the right holder in the Community design,having been given notice to do so, does not himself bringinfringement proceedings within an appropriate period.
4. A licensee shall, for the purpose of obtaining compensa-
tionfordamagesufferedbyhim,beentitledtointerveneinaninfringement action brought by the right holder in aCommunity design.
5. In the case of a registered Community design, the grant
or transfer of a licence in respect of such right shall, at therequest of one of the parties, be entered in the register andpublished.
Article 33
Effects vis-à-vis thirdparties
1. The effects vis-à-vis third parties of the legal acts referredto in Articles 28, 29, 30 and 32 shall be governed by the lawoftheMemberStatedeterminedinaccordancewithArticle27.
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2. However, as regards registered Community designs, legal
actsreferredtoinArticles28,29and32shallonlyhaveeffectvis-à-visthirdpartiesinalltheMemberStatesafterentryintheregister. Nevertheless, such an act, before it is so entered, shallhave effect vis-à-vis third parties who have acquired rights inthe registered Community design after the date of that act butwho knew of the act at the date on which the rights wereacquired.
3. Paragraph2shallnotapplytoapersonwhoacquiresthe
registered Community design or a right concerning the regis-teredCommunitydesignbywayoftransferofthewholeoftheundertaking or by any other universal succession.
4. Until such time as common rules for the Member States
in the field of insolvency enter into force, the effects vis-à-visthird parties of insolvency proceedings shall be governed bythe law of the Member State in which such proceedings arefirst brought under the national law or the regulations applic-able in this field.
Article 34
The application for a registeredCommunity d esign as an
object of property
1. An application for a registered Community design as anobjectofpropertyshallbedealtwithinitsentirety,andforthewholeareaoftheCommunity,asanationaldesignrightoftheMember State determined in accordance with Article 27.
2. Articles 28, 29, 30, 31, 32 and 33 shall apply mutatis
mutandisto applications for registered Community designs.
Wheretheeffectofoneoftheseprovisionsisconditionalupon
anentryintheregister,thatformalityshallbeperformeduponregistration of the resulting registered Community design.
TITLE IV
APPLICATION FOR A REGISTERED COMMUNITY DESIGN
Section 1
Filing of applications and the conditions which govern them
Article 35
Filing andforward ing of applications
1. An application for a registered Community design shallbe filed, at the option of the applicant:
(a) at the Office; or
(b) at the central industrial property office of a Member State;
or
(c) in the Benelux countries, at the Benelux Design Office.
2. Where the application is filed at the central industrialproperty office of a Member State or at the Benelux DesignOffice,thatofficeshalltakeallstepstoforwardtheapplicationto the Office within two weeks after filing. It may charge theapplicant a fee which shall not exceed the administrative costsof receiving and forwarding the application.
3. As soon as the Office has received an application which
has been forwarded by a central industrial property office of aMember State or by the Benelux Design Office, it shall informthe applicant accordingly, indicating the date of its receipt atthe Office.
4. No less than 10 years after the entry into force of this
Regulation, the Commission shall draw up a report on theoperation of the system of filing applications for registeredCommunity designs, accompanied by any proposals for revi-sion that it may deem appropriate.
Article 36
Conditions with which applications must comply
1. An application for a registered Community design shallcontain:
(a) a request for registration;
(b) information identifying the applicant;
(c) a representation of the design suitable for reproduction.
However, if the object of the application is a two-dimen-sional design and the application contains a request fordefermentofpublicationinaccordancewithArticle50,therepresentation of the design may be replaced by aspecimen.
2. The application shall further contain an indication of theproductsinwhichthedesignisintendedtobeincorporatedorto which it is intended to be applied.
3. In addition, the application may contain:
(a) a description explaining the representation or the
specimen;
(b) arequestfordefermentofpublicationoftheregistrationin
accordance with Article 50;
(c) information identifying the representative if the applicant
has appointed one;
(d) the classification of the products in which the design is
intendedtobeincorporatedortowhichitisintendedtobe
applied according to class;
(e) thecitationofthedesigneroroftheteamofdesignersora
statement under the applicant's responsibility that thedesignerortheteamofdesignershaswaivedtherighttobecited.
4. The application shall be subject to the payment of theregistration fee and the publication fee. Where a request fordeferment under paragraph 3(b) is filed, the publication feeshall be replaced by the fee for deferment of publication.
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5. The application shall comply with the conditions laid
down in the implementing regulation.
6. The information contained in the elements mentioned in
paragraph 2 and in paragraph 3(a) and (d) shall not affect thescope of protection of the design as such.
Article 37
Multiple applications
1. Several designs may be combined in one multipleapplication for registered Community designs. Except in casesof ornamentation, this possibility is subject to the conditionthat the products in which the designs are intended to beincorporated or to which they are intended to be applied allbelong to the same class of the International Classification forIndustrial Designs.
2. Besides the fees referred to in Article 36(4), the multiple
application shall be subject to payment of an additional regis-tration fee and an additional publication fee. Where themultiple application contains a request for deferment of publi-cation, the additional publication fee shall be replaced by theadditional fee for deferment of publication. The additional feesshall correspond to a percentage of the basic fees for eachadditional design.
3. The multiple application shall comply with the condi-
tionsofpresentationlaiddownintheimplementingregulation.
4. Eachofthedesignscontainedinamultipleapplicationor
registration may be dealt with separately from the others forthe purpose of applying this Regulation. It may in particular,separatelyfromtheothers,beenforced,licensed,bethesubjectofaright in rem,alevyofexecutionorinsolvencyproceedings,
besurrendered,renewedorassigned,bethesubjectofdeferredpublication or be declared invalid. A multiple application orregistration may be divided into separate applications or regis-trationsonlyundertheconditionssetoutintheimplementingregulation.
Article 38
Date of filing
1. The date of filing of an application for a registeredCommunity design shall be the date on which documentscontaining the information specified in Article 36(1) are filedwiththeOfficebytheapplicant,or,iftheapplicationhasbeenfiled with the central industrial property office of a MemberState or with the Benelux Design Office, with that office.
2. By derogation from paragraph 1, the date of filing of an
application filed with the central industrial property office of aMember State or with the Benelux Design Office and reachingthe Office more than two months after the date on whichdocuments containing the information specified in Article36(1) have been filed shall be the date of receipt of suchdocuments by the Office.Article 39
Equivalence of Community filing with national filing
An application for a registered Community design which hasbeen accorded a date of filing shall, in the Member States, beequivalent to a regular national filing, including where appro-priate the priority claimed for the said application.
Article 40
Classification
For the purpose of this Regulation, use shall be made of theAnnex to the Agreement establishing an International Classi-ficationforIndustrialDesigns,signedatLocarnoon8October1968.
Section 2
Priority
Article 41
Right of priority
1. A person who has duly filed an application for a designrightorforautilitymodelinorforanyStatepartytotheParisConvention for the Protection of Industrial Property, or to theAgreement establishing the World Trade Organisation, or hissuccessors in title, shall enjoy, for the purpose of filing anapplicationforaregisteredCommunitydesigninrespectofthesame design or utility model, a right of priority of six monthsfrom the date of filing of the first application.
2. Every filing that is equivalent to a regular national filing
underthenationallawoftheStatewhereitwasmadeorunderbilateral or multilateral agreements shall be recognised asgiving rise to a right of priority.
3. ‘Regular national filing’ means any filing that is sufficient
to establish the date on which the application was filed, what-ever may be the outcome of the application.
4. A subsequent application for a design which was the
subject of a previous first application, and which is filed in orin respect of the same State, shall be considered as the firstapplication for the purpose of determining priority, providedthat,atthedateofthefilingofthesubsequentapplication,theprevious application has been withdrawn, abandoned orrefused without being open to public inspection and withoutleavinganyrightsoutstanding,andhasnotservedasabasisforclaiming priority. The previous application may not thereafterserve as a basis for claiming a right of priority.
5. If the first filing has been made in a State which is not a
partytotheParisConvention,ortotheAgreementestablishingthe World Trade Organisation, paragraphs 1 to 4 shall applyonly in so far as that State, according to published findings,grants,onthebasisofafilingmadeattheOfficeandsubjecttoconditions equivalent to those laid down in this Regulation, aright of priority having equivalent effect.
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Article 42
Claiming priority
An applicant for a registered Community design desiring to
take advantage of the priority of a previous application shallfileadeclarationofpriorityandacopyofthepreviousapplica-tion.Ifthelanguageofthelatterisnotoneofthelanguagesofthe Office, the Office may require a translation of the previousapplication in one of those languages.
Article 43
Effect of priority right
The effect of the right of priority shall be that the date ofpriority shall count as the date of the filing of the applicationfor a registered Community design for the purpose of Articles5, 6, 7, 22, 25(1)(d) and 50(1).
Article 44
Exhibition priority
1. If an applicant for a registered Community design hasdisclosed products in which the design is incorporated, or towhich it is applied, at an official or officially recognised inter-national exhibition falling within the terms of the Conventionon International Exhibitions signed in Paris on 22 November1928 and last revised on 30 November 1972, he may, if hefiles the application within a period of six months from thedate of the first disclosure of such products, claim a right ofpriority from that date within the meaning of Article 43.
2. An applicant who wishes to claim priority pursuant to
paragraph 1, under the conditions laid down in the imple-menting regulation, must file evidence that he has disclosed atan exhibition the products in or to which the design is incor-porated or applied.
3. An exhibition priority granted in a Member State or in a
third country does not extend the period of priority laid downin Article 41.
TITLE V
REGISTRATION PROCEDURE
Article 45
Examination as to formal requirements for filing
1. The Office shall examine whether the applicationcomplies with the requirements laid down in Article 36(1) forthe accordance of a date of filing.
2. The Office shall examine whether:
(a) the application complies with the other requirements laid
down in Article 36(2), (3), (4) and (5) and, in the case of a
multiple application, Article 37(1) and (2);(b) theapplicationmeetstheformalrequirementslaiddownin
the implementing regulation for the implementation ofArticles 36 and 37;
(c) the requirements of Article 77(2) are satisfied;
(d) therequirementsconcerningtheclaimtopriorityaresatis-
fied, if a priority is claimed.
3. The conditions for the examination as to the formalrequirements for filing shall be laid down in the implementingregulation.
Article 46
Remediable deficiencies
1. Where,incarryingouttheexaminationunderArticle45,the Office notes that there are deficiencies which may becorrected,theOfficeshallrequesttheapplicanttoremedythemwithin the prescribed period.
2. Ifthedeficienciesconcerntherequirementsreferredtoin
Article 36(1) and the applicant complies with the Office'srequest within the prescribed period, the Office shall accord asthe date of filing the date on which the deficiencies areremedied. If the deficiencies are not remedied within theprescribed period, the application shall not be dealt with as anapplication for a registered Community design.
3. Ifthedeficienciesconcerntherequirements,includingthe
payment of fees, as referred to in Article 45(2)(a), (b) and (c)andtheapplicantcomplieswiththeOffice'srequestwithintheprescribed period, the Office shall accord as the date of filingthe date on which the application was originally filed. If thedeficiencies or the default in payment are not remedied withinthe prescribed period, the Office shall refuse the application.
4. Ifthedeficienciesconcerntherequirementsreferredtoin
Article 45(2)(d), failure to remedy them within the prescribedperiod shall result in the loss of the right of priority for theapplication.
Article 47
Grounds for non-registrability
1. IftheOffice,incarryingouttheexaminationpursuanttoArticle 45, notices that the design for which protection issought:
(a) doesnotcorrespondtothedefinitionunderArticle3(a);or
(b) is contrary to public policy or to accepted principles of
morality, it shall refuse the application.
2. The application shall not be refused before the applicanthasbeenallowedtheopportunityofwithdrawingoramendingthe application or of submitting his observations.
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Article 48
Registration
If the requirements that an application for a registered
Community design must satisfy have been fulfilled and to theextent that the application has not been refused by virtue ofArticle 47, the Office shall register the application in theCommunity design Register as a registered Community design.The registration shall bear the date of filing of the applicationreferred to in Article 38.
Article 49
Publication
Upon registration, the Office shall publish the registeredCommunity design in the Community Designs Bulletin asmentioned in Article 73(1). The contents of the publicationshall be set out in the implementing regulation.
Article 50
Deferment of publication
1. The applicant for a registered Community design mayrequest,whenfilingtheapplication,thatthepublicationoftheregistered Community design be deferred for a period of 30monthsfromthedateoffilingtheapplicationor,ifapriorityisclaimed, from the date of priority.
2. Upon such request, where the conditions set out in
Article 48 are satisfied, the registered Community design shallbe registered, but neither the representation of the design norany file relating to the application shall, subject to Article74(2), be open to public inspection.
3. The Office shall publish in the Community Designs
Bulletin a mention of the deferment of the publication of theregistered Community design. The mention shall be accompa-nied by information identifying the right holder in the regis-tered Community design, the date of filing the application andany other particulars prescribed by the implementing regula-tion.
4. Attheexpiryoftheperiodofdeferment,oratanyearlier
date on request by the right holder, the Office shall open topublic inspection all the entries in the register and the filerelating to the application and shall publish the registeredCommunity design in the Community Designs Bulletin,provided that, within the time limit laid down in the imple-menting regulation:
(a) the publication fee and, in the event of a multiple applica-
tion, the additional publication fee are paid;
(b) whereusehasbeenmadeoftheoptionpursuanttoArticle
36(1)(c), the right holder has filed with the Office a repre-sentation of the design.
If the right holder fails to comply with these requirements, theregistered Community design shall be deemed from the outsetnot to have had the effects specified in this Regulation.5. In the case of multiple applications, paragraph 4 needonly be applied to some of the designs included therein.
6. The institution of legal proceedings on the basis of a
registeredCommunitydesignduringtheperiodofdefermentofpublication shall be subject to the condition that the informa-tion contained in the register and in the file relating to theapplication has been communicated to the person againstwhom the action is brought.
TITLE VI
SURRENDER AND INVALIDITY OF THE REGISTERED
COMMUNITY DESIGN
Article 51
Surrender
1. The surrender of a registered Community design shall bedeclaredtotheOfficeinwritingbytherightholder.Itshallnothave effect until it has been entered in the register.
2. If a Community design which is subject to deferment of
publication is surrendered it shall be deemed from the outsetnot to have had the effects specified in this Regulation.
3. A registered Community design may be partially surren-
dered provided that its amended form complies with therequirements for protection and the identity of the design isretained.
4. Surrender shall be registered only with the agreement of
theproprietorofarightenteredintheregister.Ifalicencehasbeenregistered,surrendershallbeenteredintheregisteronlyifthe right holder in the registered Community design provesthathehasinformedthelicenseeofhisintentiontosurrender.Thisentryshallbemadeonexpiryoftheperiodprescribedbythe implementing regulation.
5. If an action pursuant to Article 14 relating to the entitle-
ment to a registered Community design has been broughtbeforeaCommunitydesigncourt,theOfficeshallnotenterthesurrenderintheregisterwithouttheagreementoftheclaimant.
Article 52
Application for a declaration of invalidity
1. Subject to Article 25(2), (3), (4) and (5), any natural orlegalperson,aswellasapublicauthorityempoweredtodoso,may submit to the Office an application for a declaration ofinvalidity of a registered Community design.
2. The application shall be filed in a written reasoned state-
ment.Itshallnotbedeemedtohavebeenfileduntilthefeeforan application for a declaration of invalidity has been paid.
3. An application for a declaration of invalidity shall not be
admissible if an application relating to the same subject matterand cause of action, and involving the same parties, has beenadjudicatedonbyaCommunitydesigncourtandhasacquiredthe authority of a final decision.
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Article 53
Examination of the application
1. IftheOfficefindsthattheapplicationforadeclarationof
invalidity is admissible, the Office shall examine whether thegrounds for invalidity referred to in Article 25 prejudice themaintenance of the registered Community design.
2. In the examination of the application, which shall be
conductedinaccordancewiththeimplementingregulation,theOffice shall invite the parties, as often as necessary, to fileobservations, within a period to be fixed by the Office, oncommunications from the other parties or issued by itself.
3. The decision declaring the registered Community design
invalid shall be entered in the register upon becoming final.
Article 54
Participation in the proceedings of the alleged infringer
1. In the event of an application for a declaration of inva-
lidityofaregisteredCommunitydesignbeingfiled,andaslongas no final decision has been taken by the Office, any thirdparty who proves that proceedings for infringement of thesamedesignhavebeeninstitutedagainsthimmaybejoinedasa party in the invalidity proceedings on request submittedwithin three months of the date on which the infringementproceedings were instituted.
The same shall apply in respect of any third party who proves
both that the right holder of the Community design hasrequested that he cease an alleged infringement of the designandthathehasinstitutedproceedingsforacourtrulingthatheis not infringing the Community design.
2. The request to be joined as a party shall be filed in a
written reasoned statement. It shall not be deemed to havebeen filed until the invalidity fee, referred to in Article 52(2),has been paid. Thereafter the request shall, subject to anyexceptions laid down in the implementing regulation, betreated as an application for a declaration of invalidity.
TITLE VII
APPEALS
Article 55
Decisions subject to appeal
1. An appeal shall lie from decisions of the examiners, theAdministrationofTradeMarksandDesignsandLegalDivisionand Invalidity Divisions. It shall have suspensive effect.
2. A decision which does not terminate proceedings as
regards one of the parties can only be appealed together withthe final decision, unless the decision allows separate appeal.Article 56
Persons entitledto appeal andto be parties to appeal
proceedings
Any party to proceedings adversely affected by a decision mayappeal.Anyotherpartiestotheproceedingsshallbepartiestothe appeal proceedings as of right.
Article 57
Time limit andform of appeal
Notice of appeal must be filed in writing at the Office withintwo months after the date of notification of the decisionappealed from. The notice shall be deemed to have been filedonly when the fee for appeal has been paid. Within fourmonths after the date of notification of the decision, a writtenstatement setting out the grounds of appeal must be filed.
Article 58
Interlocutory revision
1. If the department whose decision is contested considerstheappealtobeadmissibleandwellfounded,itshallrectifyitsdecision. This shall not apply where the appellant is opposedby another party to the proceedings.
2. If the decision is not rectified within one month after
receipt of the statement of grounds, the appeal shall beremitted to the Board of Appeal without delay and withoutcomment as to its merits.
Article 59
Examination of appeals
1. If the appeal is admissible, the Board of Appeal shallexamine whether the appeal is to be allowed.
2. In the examination of the appeal, the Board of Appeal
shall invite the parties, as often as necessary, to file observa-tions, within a period to be fixed by the Board of Appeal, oncommunications from the other parties or issued by itself.
Article 60
Decisions in respect of appeals
1. Followingtheexaminationastothemeritsoftheappeal,the Board of Appeal shall decide on the appeal. The Board ofAppeal may either exercise any power within the competenceof the department which was responsible for the decisionappealed against or remit the case to that department forfurther prosecution.
2. If the Board of Appeal remits the case for further prose-
cution to the department whose decision was appealed, thatdepartmentshallbeboundbythe ratio decidendi oftheBoardof
Appeal, in so far as the facts are the same.
3. The decisions of the Boards of Appeal shall take effect
onlyfromthedateofexpiryoftheperiodreferredtoinArticle61(5) or, if an action has been brought before the Court ofJustice within that period, from the date of rejection of suchaction.
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Article 61
Actions before the Court of Justice
1. Actions may be brought before the Court of Justice
against decisions of the Boards of Appeal on appeals.
2. The action may be brought on grounds of lack of
competence, infringement of an essential procedural require-ment, infringement of the Treaty, of this Regulation or of anyrule of law relating to their application or misuse of power.
3. The Court of Justice has jurisdiction to annul or to alter
the contested decision.
4. The action shall be open to any party to proceedings
before the Board of Appeal adversely affected by its decision.
5. The action shall be brought before the Court of Justice
withintwomonthsofthedateofnotificationofthedecisionofthe Board of Appeal.
6. The Office shall be required to take the necessary meas-
ures to comply with the judgment of the Court of Justice.
TITLE VIII
PROCEDURE BEFORE THE OFFICE
Section 1
General provisions
Article 62
Statement of reasons on which decisions are based
Decisions of the Office shall state the reasons on which theyare based. They shall be based only on reasons or evidence onwhich the parties concerned have had an opportunity topresent their comments.
Article 63
Examination of the facts by the Office of its own motion
1. InproceedingsbeforeittheOfficeshallexaminethefacts
of its own motion. However, in proceedings relating to adeclaration of invalidity, the Office shall be restricted in thisexamination to the facts, evidence and arguments provided bythe parties and the relief sought.
2. TheOfficemaydisregardfactsorevidencewhicharenot
submitted in due time by the parties concerned.
Article 64
Oral proceedings
1. If the Office considers that oral proceedings would beexpedient,theyshallbeheldeitherattheinstanceoftheOfficeor at the request of any party to the proceedings.
2. Oralproceedings,includingdeliveryofthedecision,shall
be public, unless the department before which the proceedingsare taking place decides otherwise in cases where admission ofthe public could have serious and unjustified disadvantages, inparticular for a party to the proceedings.
Article 65
Taking of evidence
1. In any proceedings before the Office the means of givingor obtaining evidence shall include the following:
(a) hearing the parties;
(b) requests for information;
(c) the production of documents and items of evidence;
(d) hearing witnesses;
(e) opinions by experts;
(f) statementsinwriting,swornoraffirmedorhavingasimilar
effect under the law of the State in which the statement isdrawn up.
2. The relevant department of the Office may commissionone of its members to examine the evidence adduced.
3. IftheOfficeconsidersitnecessaryforaparty,witnessor
expert to give evidence orally, it shall issue a summons to theperson concerned to appear before it.
4. The parties shall be informed of the hearing of a witness
or expert before the Office. They shall have the right to bepresent and to put questions to the witness or expert.
Article 66
Notification
The Office shall, as a matter of course, notify those concernedof decisions and summonses and of any notice or othercommunication from which a time limit is reckoned, or ofwhichthoseconcernedmustbenotifiedunderotherprovisionsof this Regulation or of the implementing regulation, or ofwhich notification has been ordered by the President of theOffice.
Article 67
Restitutio in integrum
1. The applicant for or holder of a registered Communitydesign or any other party to proceedings before the Officewho, in spite of all due care required by the circumstanceshavingbeentaken,wasunabletoobserveatimelimitvis-à-vistheOfficeshall,uponapplication,havehisrightsre-establishedif the non-observance in question has the direct consequence,by virtue of the provisions of this Regulation, of causing theloss of any rights or means of redress.
2. The application must be filed in writing within two
months of the removal of the cause of non-compliance withthe time limit. The omitted act must be completed within thisperiod.Theapplicationshallonlybeadmissiblewithintheyearimmediatelyfollowingtheexpiryoftheunobservedtimelimit.In the case of non-submission of the request for renewal ofregistration or of non-payment of a renewal fee, the furtherperiod of six months provided for in the second sentence ofArticle 13(3) shall be deducted from the period of one year.
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3. The application must state the grounds on which it is
based and must set out the facts on which it relies. It shall notbe deemed to be filed until the fee for the re-establishment ofrights has been paid.
4. The department competent to decide on the omitted act
shall decide upon the application.
5. The provisions of this Article shall not be applicable to
the time limits referred to in paragraph 2 and Article 41(1).
6. Where the applicant for or holder of a registered
Community design has his rights re-established, he may notinvoke his rights vis-à-vis a third party who, in good faith, inthe course of the period between the loss of rights in theapplication for or registration of the registered Communitydesign and publication of the mention of re-establishment ofthoserights,hasputonthemarketproductsinwhichadesignincluded within the scope of protection of the registeredCommunity design is incorporated or to which it is applied.
7. A third party who may avail himself of the provisions of
paragraph 6 may bring third party proceedings against thedecisionre-establishingtherightsoftheapplicantfororholderof the registered Community design within a period of twomonths as from the date of publication of the mention ofre-establishment of those rights.
8. Nothing in this Article shall limit the right of a Member
State to grant restitutio in integrum in respect of time limits
provided for in this Regulation and to be complied withvis-à-vis the authorities of such State.
Article 68
Reference to general principles
In the absence of procedural provisions in this Regulation, theimplementing regulation, the fees regulation or the rules ofprocedure of the Boards of Appeal, the Office shall take intoaccount the principles of procedural law generally recognisedin the Member States.
Article 69
Termination of financial obligations
1. RightsoftheOfficetothepaymentoffeesshallbebarredfour years from the end of the calendar year in which the feefell due.
2. Rights against the Office for the refunding of fees or
sumsofmoneypaidinexcessofafeeshallbebarredafterfouryears from the end of the calendar year in which the rightarose.
3. The periods laid down in paragraphs 1 and 2 shall be
interrupted, in the case covered by paragraph 1, by a requestforpaymentofthefeeand,inthecasecoveredbyparagraph2,by a reasoned claim in writing. On interruption it shall beginagainimmediatelyandshallendatthelatestsixyearsaftertheend of the year in which it originally began, unless in themeantimejudicialproceedingstoenforcetherighthavebegun.In this case the period shall end at the earliest one year afterthe judgment has acquired the authority of a final decision.Section 2
Costs
Article 70
Apportionment of costs
1. Thelosingpartyinproceedingsforadeclarationofinva-lidity of a registered Community design or appeal proceedingsshall bear the fees incurred by the other party as well as allcosts incurred by him essential to the proceedings, includingtravel and subsistence and the remuneration of an agent,adviser or advocate, within the limits of scales set for eachcategory of costs under the conditions laid down in the imple-menting regulation.
2. However, where each party succeeds on some and fails
onotherheads,orifreasonsofequitysodictate,theInvalidityDivisionorBoardofAppealshalldecideadifferentapportion-ment of costs.
3. A party who terminates the proceedings by surrendering
the registered Community design or by not renewing its regis-tration or by withdrawing the application for a declaration ofinvalidity or the appeal, shall bear the fees and the costsincurredbytheotherpartyasstipulatedinparagraphs1and2.
4. Where a case does not proceed to judgment, the costs
shall be at the discretion of the Invalidity Division or Board ofAppeal.
5. Where the parties conclude before the Invalidity Division
or Board of Appeal a settlement of costs differing from thatprovided for in paragraphs 1, 2, 3 and 4, the body concernedshall take note of that agreement.
6. On request, the registry of the Invalidity Division or
Board of Appeal shall fix the amount of the costs to be paidpursuant to the preceding paragraphs. The amount so deter-minedmaybereviewedbyadecisionoftheInvalidityDivisionor Board of Appeal on a request filed within the periodprescribed by the implementing regulation.
Article 71
Enforcement of decisions fixing the amount of costs
1. Any final decision of the Office fixing the amount ofcosts shall be enforceable.
2. Enforcementshallbegovernedbytherulesofcivilproce-
dure in force in the State in the territory of which it is carriedout. The order for its enforcement shall be appended to thedecision, without any other formality than verification of theauthenticity of the decision, by the national authority whichthe government of each Member State shall designate for thispurpose and shall make known to the Office and to the Courtof Justice.
3. When these formalities have been completed on applica-
tionbythepartyconcerned,thelattermayproceedtoenforce-ment in accordance with the national law, by bringing thematter directly before the competent authority.
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4. Enforcementmaybesuspendedonlybyadecisionofthe
Court of Justice. However, the courts of the Member Stateconcernedshallhavejurisdictionovercomplaintsthatenforce-ment is being carried out in an irregular manner.
Section 3
Informing the public and the official authorities of the
Member States
Article 72
Register of Community designs
The Office shall keep a register to be known as the register ofCommunity designs, which shall contain those particulars ofwhich the registration is provided for by this Regulation or bythe implementing regulation. The register shall be open topublic inspection, except to the extent that Article 50(2)provides otherwise.
Article 73
Periodical publications
1. This Office shall periodically publish a CommunityDesignsBulletincontainingentriesopentopublicinspectionintheregisteraswellasotherparticularsthepublicationofwhichisprescribedbythisRegulationorbytheimplementingregula-tion.
2. Notices and information of a general character issued by
the President of the Office, as well as any other informationrelevant to this Regulation or its implementation, shall bepublished in the Official Journal of the Office.
Article 74
Inspection of files
1. The files relating to applications for registeredCommunity designs which have not yet been published or thefiles relating to registered Community designs which aresubject to deferment of publication in accordance with Article50 or which, being subject to such deferment, have beensurrenderedbeforeorontheexpiryofthatperiod,shallnotbemadeavailableforinspectionwithouttheconsentoftheappli-cant for or the right holder in the registered Communitydesign.
2. Any person who can establish a legitimate interest may
inspectafilewithouttheconsentoftheapplicantfororholderoftheregisteredCommunitydesignpriortothepublicationorafter the surrender of the latter in the case provided for inparagraph 1.
This shall in particular apply if the interested person proves
that the applicant for or the holder of the registeredCommunity design has taken steps with a view to invokingagainst him the right under the registered Community design.3. Subsequent to the publication of the registeredCommunity design, the file may be inspected on request.
4. However, where a file is inspected pursuant to paragraph
2 or 3, certain documents in the file may be withheld frominspection in accordance with the provisions of the imple-menting regulation.
Article 75
Administrative cooperation
Unless otherwise provided in this Regulation or in nationallaws, the Office and the courts or authorities of the MemberStatesshallonrequestgiveassistancetoeachotherbycommu-nicating information or opening files for inspection.
Where the Office opens files to inspection by courts, public
prosecutors' offices or central industrial property offices, theinspection shall not be subject to the restrictions laid down inArticle 74.
Article 76
Exchange of publications
1. The Office and the central industrial property offices oftheMemberStatesshalldespatchtoeachotheronrequestandfor their own use one or more copies of their respectivepublications free of charge.
2. The Office may conclude agreements relating to the
exchange or supply of publications.
Section 4
Representation
Article 77
General principles of representation
1. Subject to paragraph 2, no person shall be compelled tobe represented before the Office.
2. Without prejudice to the second subparagraph of para-
graph 3, natural or legal persons not having either their domi-cile or their principal place of business or a real and effectiveindustrialorcommercialestablishmentintheCommunitymustbe represented before the Office in accordance with Article78(1) in all proceedings before the Office established by thisRegulation, other than in filing an application for a registeredCommunity design; the implementing regulation may permitother exceptions.
3. Natural or legal persons having their domicile or prin-
cipal place of business or a real and effective industrial orcommercial establishment in the Community may be repre-sented before the Office by one of their employees, who mustfile with it a signed authorisation for inclusion in the files, thedetails of which are set out in the implementing regulation.
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Anemployeeofalegalpersontowhichthisparagraphapplies
may also represent other legal persons which have economicconnectionswiththefirstlegalperson,evenifthoseotherlegalpersonshaveneithertheirdomicilenortheirprincipalplaceofbusinessnorarealandeffectiveindustrialorcommercialestab-lishment within the Community.
Article 78
Professional representation
1. Representation of natural or legal persons in proceedingsbefore the Office under this Regulation may only be under-taken by:
(a) anylegalpractitionerqualifiedinoneoftheMemberStates
andhavinghisplaceofbusinesswithintheCommunity,totheextentthatheisentitled,withinthesaidState,toactasa representative in industrial property matters; or
(b) any professional representatives whose name has been
entered on the list of professional representatives referredto in Article 89(1)(b) of the Regulation on the Communitytrade mark; or
(c) persons whose names are entered on the special list of
professional representatives for design matters referred toin paragraph 4.
2. The persons referred to in paragraph 1(c) shall only beentitled to represent third persons in proceedings on designmatters before the Office.
3. The implementing regulation shall provide whether and
underwhatconditionsrepresentativesmustfilewiththeOfficea signed authorisation for insertion on the files.
4. Any natural person may be entered on the special list of
professional representatives in design matters, if he fulfils thefollowing conditions:
(a) he must be a national of one of the Member States;
(b) he must have his place of business or employment in the
Community;
(c) he must be entitled to represent natural or legal persons in
design matters before the central industrial property officeof a Member State or before the Benelux Design Office.Where, in that State, the entitlement to represent in designmatters is not conditional upon the requirement of specialprofessional qualifications, persons applying to be enteredon the list must have habitually acted in design mattersbeforethecentralindustrialpropertyofficeofthesaidStateforatleastfiveyears.However,personswhoseprofessionalqualification to represent natural or legal persons in designmatters before the central industrial property office of oneof the Member States is officially recognised in accordancewith the regulations laid by such State shall not be subjectto the condition of having exercised the profession.5. Entry on the list referred to in paragraph 4 shall beeffected upon request, accompanied by a certificate furnishedby the central industrial property office of the Member Stateconcerned, which must indicate that the conditions laid downin the said paragraph are fulfilled.
6. The President of the Office may grant exemption from:
(a) therequirementofparagraph4(a)inspecialcircumstances;
(b) the requirement of paragraph 4(c), second sentence, if the
applicant furnishes proof that he has acquired the requisite
qualification in another way.
7. The conditions under which a person may be removedfromthelistshallbelaiddownintheimplementingregulation.
TITLE IX
JURISDICTION AND PROCEDURE IN LEGAL ACTIONS
RELATING TO COMMUNITY DESIGNS
Section 1
Jurisdiction and enforcement
Article 79
Application of the Convention on Jurisdiction and
Enforcement
1. UnlessotherwisespecifiedinthisRegulation,theConven-tiononJurisdictionandtheEnforcementofJudgementsinCiviland Commercial Matters, signed in Brussels on 27 September1968(
1), hereinafter referred to as the ‘Convention on Jurisdic-
tion and Enforcement’, shall apply to proceedings relating toCommunitydesignsandapplicationsforregisteredCommunitydesigns, as well as to proceedings relating to actions on thebasis of Community designs and national designs enjoyingsimultaneous protection.
2. The provisions of the Convention on Jurisdiction and
Enforcementwhicharerenderedapplicablebytheparagraph1shall have effect in respect of any Member State solely in thetextwhichisinforceinrespectofthatStateatanygiventime.
3. In the event of proceedings in respect of the actions and
claims referred to in Article 85:
(a) Articles 2, 4, 5(1), (3), (4) and (5), 16(4) and 24 of the
Convention on Jurisdiction and Enforcement shall notapply;
(b) Articles 17 and 18 of that Convention shall apply subject
to the limitations in Article 82(4) of this Regulation;
(c) the provisions of Title II of that Convention which are
applicable to persons domiciled in a Member State shallalso be applicable to persons who do not have a domicilein any Member State but have an establishment therein.
(1) OJ L 299, 31.12.1972, p. 32. Convention as amended by the
Conventions on the Accession to that Convention of the States
acceding to the European Communities.
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4. The provisions of the Convention on Jurisdiction and
Enforcement shall not have effect in respect of any MemberStateforwhichthatConventionhasnotyetenteredintoforce.Until such entry into force, proceedings referred to in para-graph 1 shall be governed in such a Member State by anybilateral or multilateral convention governing its relationshipwith another Member State concerned, or, if no such conven-tionexists,byitsdomesticlawonjurisdiction,recognitionandenforcement of decisions.
Section 2
Disputes concerning the infringement and validity of
Community designs
Article 80
Community design courts
1. The Member States shall designate in their territories aslimitedanumberaspossibleofnationalcourtsandtribunalsoffirst and second instance (Community design courts) whichshall perform the functions assigned to them by this Regula-tion.
2. Each Member State shall communicate to the Commis-
sion not later than 6 March 2005 a list of Community designcourts, indicating their names and their territorial jurisdiction.
3. Any change made after communication of the list
referred to in paragraph 2 in the number, names or territorialjurisdiction of the Community design courts shall be notifiedwithout delay by the Member State concerned to the Commis-sion.
4. The information referred to in paragraphs 2 and 3 shall
be notified by the Commission to the Member States andpublished in the Official Journal of the European Communities.
5. AslongasaMemberStatehasnotcommunicatedthelistas stipulated in paragraph 2, jurisdiction for any proceedingsresulting from an action covered by Article 81 for which thecourts of that State have jurisdiction pursuant to Article 82shall lie with that court of the State in question which wouldhave jurisdiction ratione lociandratione materiae in the case of
proceedings relating to a national design right of that State.
Article 81
Jurisdiction over infringement and validity
TheCommunitydesigncourtsshallhaveexclusivejurisdiction:
(a) forinfringementactionsand—iftheyarepermittedunder
national law — actions in respect of threatened infringe-ment of Community designs;
(b) for actions for declaration of non-infringement of
Community designs, if they are permitted under nationallaw;
(c) foractionsforadeclarationofinvalidityofanunregistered
Community design;
(d) for counterclaims for a declaration of invalidity of a
Communitydesignraisedinconnectionwithactionsunder(a).Article 82
International jurisdiction
1. Subject to the provisions of this Regulation and to anyprovisions of the Convention on Jurisdiction and EnforcementapplicablebyvirtueofArticle79,proceedingsinrespectoftheactionsandclaimsreferredtoinArticle81shallbebroughtinthe courts of the Member State in which the defendant isdomiciled or, if he is not domiciled in any of the MemberStates, in any Member State in which he has an establishment.
2. Ifthedefendantisneitherdomicilednorhasanestablish-
ment in any of the Member States, such proceedings shall bebrought in the courts of the Member State in which the plain-tiffisdomiciledor,ifheisnotdomiciledinanyoftheMemberStates, in any Member State in which he has an establishment.
3. If neither the defendant nor the plaintiff is so domiciled
or has such an establishment, such proceedings shall bebroughtinthecourtsoftheMemberStatewheretheOfficehasits seat.
4. Notwithstanding paragraphs 1, 2 and 3:
(a) Article 17 of the Convention on Jurisdiction and Enforce-
ment shall apply if the parties agree that a different
Community design court shall have jurisdiction;
(b) Article 18 of that Convention shall apply if the defendant
enters an appearance before a different Community designcourt.
5. Proceedings in respect of the actions and claims referredtoinArticle81(a)and(d)mayalsobebroughtinthecourtsofthe Member State in which the act of infringement has beencommitted or threatened.
Article 83
Extent of jurisdiction on infringement
1. A Community design court whose jurisdiction is basedonArticle82(1),(2)(3)or(4)shallhavejurisdictioninrespectof acts of infringement committed or threatened within theterritory of any of the Member States.
2. A Community design court whose jurisdiction is based
on Article 82(5) shall have jurisdiction only in respect of actsofinfringementcommittedorthreatenedwithintheterritoryofthe Member State in which that court is situated.
Article 84
Action or counterclaim for a declaration of invalidity of a
Community design
1. AnactionoracounterclaimforadeclarationofinvalidityofaCommunitydesignmayonlybebasedonthegroundsforinvalidity mentioned in Article 25.
2. In the cases referred to in Article 25(2), (3), (4) and (5)
the action or the counterclaim may be brought solely by theperson entitled under those provisions.
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3. If the counterclaim is brought in a legal action to which
the right holder of the Community design is not already aparty, he shall be informed thereof and may be joined as apartytotheactioninaccordancewiththeconditionssetoutinthe law of the Member State where the court is situated.
4. The validity of a Community design may not be put in
issue in an action for a declaration of non-infringement.
Article 85
Presumption of validity — defence as to the merits
1. Inproceedingsinrespectofaninfringementactionoranaction for threatened infringement of a registered Communitydesign,theCommunitydesigncourtshalltreattheCommunitydesignasvalid.Validitymaybechallengedonlywithacounter-claimforadeclarationofinvalidity.However,aplearelatingtothe invalidity of a Community design, submitted otherwisethan by way of counterclaim, shall be admissible in so far asthe defendant claims that the Community design could bedeclared invalid on account of an earlier national design right,within the meaning of Article 25(1)(d), belonging to him.
2. Inproceedingsinrespectofaninfringementactionoran
action for threatened infringement of an unregisteredCommunitydesign,theCommunitydesigncourtshalltreattheCommunity design as valid if the right holder produces proofthattheconditionslaiddowninArticle11havebeenmetandindicates what constitutes the individual character of hisCommunity design. However, the defendant may contest itsvalidity by way of a plea or with a counterclaim for a declara-tion of invalidity.
Article 86
Judgements of invalidity
1. WhereinaproceedingbeforeaCommunitydesigncourtthe Community design has been put in issue by way of acounterclaim for a declaration of invalidity:
(a) ifanyofthegroundsmentionedinArticle25arefoundto
prejudice the maintenance of the Community design, thecourt shall declare the Community design invalid;
(b) ifnoneofthegroundsmentionedinArticle25isfoundto
prejudice the maintenance of the Community design, thecourt shall reject the counterclaim.
2. The Community design court with which a counterclaimforadeclarationofinvalidityofaregisteredCommunitydesignhasbeenfiledshallinformtheOfficeofthedateonwhichthecounterclaim was filed. The latter shall record this fact in theregister.
3. The Community design court hearing a counterclaim for
a declaration of invalidity of a registered Community designmay, on application by the right holder of the registeredCommunitydesignandafterhearingtheotherparties,staytheproceedingsandrequestthedefendanttosubmitanapplicationfor a declaration of invalidity to the Office within a time limitwhich the court shall determine. If the application is not madewithinthetimelimit,theproceedingsshallcontinue;thecoun-terclaim shall be deemed withdrawn. Article 91(3) shall apply.
4. Where a Community design court has given a judgment
which has become final on a counterclaim for a declaration ofinvalidity of a registered Community design, a copy of thejudgment shall be sent to the Office. Any party may requestinformationaboutsuchtransmission.TheOfficeshallmentionthe judgment in the register in accordance with the provisionsof the implementing regulation.
5. Nocounterclaimforadeclarationofinvalidityofaregis-
tered Community design may be made if an applicationrelating to the same subject matter and cause of action, andinvolvingthesameparties,hasalreadybeendeterminedbytheOffice in a decision which has become final.
Article 87
Effects of the judgement on invalidity
When it has become final, a judgment of a Community designcourt declaring a Community design invalid shall have in allthe Member States the effects specified in Article 26.
Article 88
Applicable law
1. The Community design courts shall apply the provisionsof this Regulation.
2. On all matters not covered by this Regulation, a
Communitydesigncourtshallapplyitsnationallaw,includingits private international law.
3. Unless otherwise provided in this Regulation, a
Community design court shall apply the rules of proceduregoverningthesametypeofactionrelatingtoanationaldesignright in the Member State where it is situated.
Article 89
Sanctions in actions for infringement
1. Where in an action for infringement or for threatenedinfringement a Community design court finds that thedefendanthasinfringedorthreatenedtoinfringeaCommunitydesign, it shall, unless there are special reasons for not doingso, order the following measures:
(a) an order prohibiting the defendant from proceeding with
the acts which have infringed or would infringe theCommunity design;
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(b) an order to seize the infringing products;
(c) an order to seize materials and implements predominantly
used in order to manufacture the infringing goods, if their
owner knew the effect for which such use was intended orif such effect would have been obvious in the circum-stances;
(d) any order imposing other sanctions appropriate under the
circumstances which are provided by the law of theMember State in which the acts of infringement or threat-ened infringement are committed, including its privateinternational law.
2. TheCommunitydesigncourtshalltakesuchmeasuresinaccordance with its national law as are aimed at ensuring thatthe orders referred to in paragraph 1 are complied with.
Article 90
Provisional measures, including protective measures
1. Application may be made to the courts of a MemberState,includingCommunitydesigncourts,forsuchprovisionalmeasures, including protective measures, in respect of aCommunity design as may be available under the law of thatState in respect of national design rights even if, under thisRegulation, a Community design court of another MemberState has jurisdiction as to the substance of the matter.
2. Inproceedingsrelatingtoprovisionalmeasures,including
protective measures, a plea otherwise than by way of counter-claim relating to the invalidity of a Community designsubmitted by the defendant shall be admissible. Article 85(2)shall, however, apply mutatis mutandis.
3. A Community design court whose jurisdiction is basedon Article 82(1), (2), (3) or (4) shall have jurisdiction to grantprovisional measures, including protective measures, which,subjecttoanynecessaryprocedureforrecognitionandenforce-ment pursuant to Title III of the Convention on JurisdictionandEnforcement,areapplicableintheterritoryofanyMemberState. No other court shall have such jurisdiction.
Article 91
Specific rules on relatedactions
1. A Community design court hearing an action referred toin Article 81, other than an action for a declaration of non-infringement, shall, unless there are special grounds forcontinuing the hearing, of its own motion after hearing theparties,orattherequestofoneofthepartiesandafterhearingtheotherparties,staytheproceedingswherethevalidityoftheCommunity design is already in issue before anotherCommunity design court on account of a counterclaim or, inthe case of a registered Community design, where an applica-tion for a declaration of invalidity has already been filed at theOffice.
2. TheOffice,whenhearinganapplicationforadeclaration
of invalidity of a registered Community design, shall, unlesstherearespecialgroundsforcontinuingthehearing,ofitsownmotionafterhearingtheparties,orattherequestofoneofthepartiesandafterhearingtheotherparties,staytheproceedingswhere the validity of the registered Community design isalready in issue on account of a counterclaim before aCommunitydesigncourt.However,ifoneofthepartiestotheproceedings before the Community design court so requests,thecourtmay,afterhearingtheotherpartiestotheseproceed-ings, stay the proceedings. The Office shall in this instancecontinue the proceedings pending before it.
3. WheretheCommunitydesigncourtstaystheproceedings
it may order provisional measures, including protective meas-ures, for the duration of the stay.
Article 92
Jurisdiction of Community design courts of second
instance — further appeal
1. An appeal to the Community design courts of secondinstance shall lie from judgments of the Community designcourts of first instance in respect of proceedings arising fromthe actions and claims referred to in Article 81.
2. The conditions under which an appeal may be lodged
with a Community design court of second instance shall bedetermined by the national law of the Member State in whichthat court is located.
3. The national rules concerning further appeal shall be
applicableinrespectofjudgmentsofCommunitydesigncourtsof second instance.
Section 3
Other disputes concerning Community designs
Article 93
Supplementary provisions on the jurisdiction of national
courts other than Community design courts
1. Within the Member State whose courts have jurisdictionunder Article 79(1) or (4), those courts shall have jurisdictionfor actions relating to Community designs other than thosereferred to in Article 81 which would have jurisdiction ratione
lociandratione materiae in the case of actions relating to a
national design right in that State.
2. ActionsrelatingtoaCommunitydesign,otherthanthose
referred to in Article 81, for which no court has jurisdictionpursuant to Article 79(1) and (4) and paragraph 1 of thisArticle may be heard before the courts of the Member State inwhich the Office has its seat.
Article 94
Obligation of the national court
A national court which is dealing with an action relating to aCommunitydesignotherthantheactionsreferredtoinArticle81shalltreatthedesignasvalid.Articles85(2)and90(2)shall,however, apply mutatis mutandis.
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TITLE X
EFFECTS ON THE LAWS OF THE MEMBER STATES
Article 95
Parallel actions on the basis of Community designs and
national design rights
1. Where actions for infringement or for threatened
infringement involving the same cause of action and betweenthe same parties are brought before the courts of differentMemberStates,oneseizedonthebasisofaCommunitydesignand the other seized on the basis of a national design rightproviding simultaneous protection, the court other than thecourtfirstseizedshallofitsownmotiondeclinejurisdictioninfavour of that court. The court which would be required todecline jurisdiction may stay its proceedings if the jurisdictionof the other court is contested.
2. The Community design court hearing an action for
infringement or threatened infringement on the basis of aCommunitydesignshallrejecttheactionifafinaljudgmentonthe merits has been given on the same cause of action andbetween the same parties on the basis of a design rightproviding simultaneous protection.
3. The court hearing an action for infringement or for
threatened infringement on the basis of a national design rightshall reject the action if a final judgment on the merits hasbeen given on the same cause of action and between the sameparties on the basis of a Community design providing simulta-neous protection.
4. Paragraphs 1, 2 and 3 shall not apply in respect of
provisional measures, including protective measures.
Article 96
Relationship to other forms of protection under national
law
1. The provisions of this Regulation shall be without preju-dice to any provisions of Community law or of the law of theMemberStatesconcernedrelatingtounregistereddesigns,trademarks or other distinctive signs, patents and utility models,typefaces, civil liability and unfair competition.
2. A design protected by a Community design shall also be
eligible for protection under the law of copyright of MemberStates as from the date on which the design was created orfixed in any form. The extent to which, and the conditionsunderwhich,suchaprotectionisconferred,includingthelevelof originality required, shall be determined by each MemberState.TITLE XI
SUPPLEMENTARY PROVISIONS CONCERNING THE OFFICE
Section 1
General provisions
Article 97
General provision
Unless otherwise provided in this Title, Title XII of the Regula-tion on the Community trade mark shall apply to the Officewith regard to its tasks under this Regulation.
Article 98
Language of proceedings
1. The application for a registered Community design shallbe filed in one of the official languages of the Community.
2. The applicant must indicate a second language which
shallbealanguageoftheOfficetheuseofwhichheacceptsasa possible language of proceedings before the Office.
If the application was filed in a language which is not one of
thelanguagesoftheOffice,theOfficeshallarrangetohavetheapplication translated into the language indicated by the appli-cant.
3. WheretheapplicantforaregisteredCommunitydesignis
thesolepartytoproceedingsbeforetheOffice,thelanguageofproceedings shall be the language used for filing the applica-tion. If the application was made in a language other then thelanguagesoftheOffice,theOfficemaysendwrittencommuni-cationstotheapplicantinthesecondlanguageindicatedbytheapplicant in his application.
4. In the case of invalidity proceedings, the language of
proceedingsshallbethelanguageusedforfilingtheapplicationfor a registered Community design if this is one of thelanguages of the Office. If the application was made in alanguage other than the languages of the Office, the languageof proceedings shall be the second language indicated in theapplication.
The application for a declaration of invalidity shall be filed in
the language of proceedings.
Wherethelanguageofproceedingsisnotthelanguageusedfor
filing the application for a registered Community design, therightholderoftheCommunitydesignmayfileobservationsinthe language of filing. The Office shall arrange to have thoseobservations translated into the language of proceedings.
The implementing regulation may provide that the translation
expenses to be borne by the Office may not, subject to aderogation granted by the Office where justified by thecomplexity of the case, exceed an amount to be fixed for eachcategory of proceedings on the basis of the average size ofstatementsofcasereceivedbytheOffice.Expenditureinexcessof this amount may be allocated to the losing party in accord-ance with Article 70.
5. Parties to invalidity proceedings may agree that a
different official language of the Community is to be thelanguage of the proceedings.
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Article 99
Publication andregister
1. Allinformationthepublicationofwhichisprescribedby
this Regulation or the implementing regulation shall bepublished in all the official languages of the Community.
2. All entries in the Register of Community designs shall be
made in all the official languages of the Community.
3. Incasesofdoubt,thetextinthelanguageoftheOfficein
which the application for a registered Community design wasfiledshallbeauthentic.IftheapplicationwasfiledinanofficiallanguageoftheCommunityotherthanoneofthelanguagesofthe Office, the text in the second language indicated by theapplicant shall be authentic.
Article 100
Supplementary powers of the President
In addition to the functions and powers conferred on thePresidentoftheOfficebyArticle119oftheRegulationontheCommunity trade mark, the President may place before theCommissionanyproposaltoamendthisRegulation,theimple-menting regulation, the fees regulation and any other rule tothe extent that they apply to registered Community designs,after consulting the Administrative Board and, in the case ofthe fees regulation, the Budget Committee.
Article 101
Supplementary powers of the Administrative Board
In addition to the powers conferred on it by Article 121 et seq
of the Regulation on the Community trade mark or by otherprovisions of this Regulation, the Administrative Board;
(a) shall set the date for the first filing of applications for
registered Community designs pursuant to Article 111(2);
(b) shall be consulted before adoption of the guidelines for
examination as to formal requirements, examination as togrounds for refusal of registration and invalidity proceed-ingsintheOfficeandintheothercasesprovidedforinthisRegulation.
Section 2
Procedures
Article 102
Competence
For taking decisions in connection with the procedures laiddown in this Regulation the following shall be competent:
(a) examiners;
(b) the Administration of Trade Marks and Designs and Legal
Division;(c) Invalidity Divisions;
(d) Boards of Appeal.
Article 103
Examiners
Anexaminershallberesponsiblefortakingdecisionsonbehalfof the Office in relation to an application for a registeredCommunity design.
Article 104
The Administration of Trade Marks and Designs and Legal
Division
1. The Administration of Trade Marks and Legal Divisionprovided for by Article 128 of the Regulation on theCommunity trade mark shall become the Administration ofTrade Marks and Designs and Legal Division.
2. InadditiontothepowersconferreduponitbytheRegu-
lationontheCommunitytrademark,itshallberesponsiblefortaking those decisions required by this Regulation which donot fall within the competence of an examiner or an InvalidityDivision. It shall in particular be responsible for decisions inrespect of entries in the register.
Article 105
Invalidity Divisions
1. An Invalidity Division shall be responsible for takingdecisions in relation to applications for declarations of inva-lidity of registered Community designs.
2. An Invalidity Division shall consist of three members. At
least one of the members must be legally qualified.
Article 106
Boards of Appeal
In addition to the powers conferred upon it by Article 131 ofthe Regulation on the Community trade mark, the Boards ofAppeal instituted by that Regulation shall be responsible fordeciding on appeals from decisions of the examiners, the Inva-lidityDivisionsandfromthedecisionsoftheAdministrationofTrade Marks and Designs and Legal Division as regards theirdecisions concerning Community designs.
TITLE XII
FINAL PROVISIONS
Article 107
Implementing regulation
1. The rules implementing this Regulation shall be adoptedin an implementing regulation.
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2. InadditiontothefeesalreadyprovidedforinthisRegula-
tion,feesshallbecharged,inaccordancewiththedetailedrulesofapplicationlaiddownintheimplementingregulationandina fees regulation, in the cases listed below:
(a) late payment of the registration fee;
(b) late payment of the publication fee;
(c) late payment of the fee for deferment of publication;
(d) late payment of additional fees for multiple applications;
(e) issue of a copy of the certificate of registration;
(f) registration of the transfer of a registered Community
design;
(g) registration of a licence or another right in respect of a
registered Community design;
(h) cancellation of the registration of a licence or another
right;
(i) issue of an extract from the register;
(j) inspection of the files;
(k) issue of copies of file documents;
(l) communication of information in a file;
(m) review of the determination of the procedural costs to be
refunded;
(n) issue of certified copies of the application.
3. Theimplementingregulationandthefeesregulationshallbeadoptedandamendedinaccordancewiththeprocedurelaiddown in Article 109(2).
Article 108
Rules of procedure of the Boards of Appeal
The rules of procedure of the Boards of Appeal shall apply toappeals heard by those Boards under this Regulation, withoutprejudice to any necessary adjustment or additional provision,adoptedinaccordancewiththeprocedurelaiddowninArticle109(2).Article 109
Committee
1. The Commission shall be assisted by a Committee.
2. Wherereferenceismadetothisparagraph,Articles5and
7 of Decision 1999/468/EC shall apply.
The period laid down in Article 5(6) of Decision 1999/468/EC
shall be set at three months.
3. The Committee shall adopt its rules of procedure
Article 110
Transitional provision
1. Until such time as amendments to this Regulation enter
intoforceonaproposalfromtheCommissiononthissubject,protection as a Community design shall not exist for a designwhichconstitutesacomponentpartofacomplexproductusedwithin the meaning of Article 19(1) for the purpose of therepair of that complex product so as to restore its originalappearance.
2. The proposal from the Commission referred to in para-
graph1shallbesubmittedtogetherwith,andtakeintoconsid-eration, any changes which the Commission shall propose onthesamesubjectpursuanttoArticle18ofDirective98/71/EC.
Article 111
Entry into force
1. This Regulation shall enter into force on the 60th dayfollowing its publication in the Official Journal of the European
Communities.
2. Applications for registered Community designs may be
filed at the Office from the date fixed by the AdministrativeBoard on the recommendation of the President of the Office.
3. Applications for registered Community designs filed
withinthreemonthsbeforethedatereferredtoinparagraph2shall be deemed to have been filed on that date.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 12 December 2001.
For the Council
The President
M. AELVOET
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