Opinion of the Advocate General — ECLI:EU:C:2009:200
Date: 2009-03-26
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: General provisions;Intellectual, industrial and commercial property;Designs
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 1. Community designs – Right to the Community design – Designs developed in the context of an employment relationship – Scope (Council Regulation No 6/2002, Art. 14(3)) 2. Community designs – Right to the Community design – Transfer of the right to a Community design from the designer to his successor in title (Council Regulation No 6/2002, Art. 14(1)) 1. Article 14(3) of Regulation No 6/2002 on Community designs, which provides that the right to the Community design vests in the employer where a design is developed by an employee in the execution of his duties or following the instructions given by his employer, unless otherwise agreed or specified under national law, does not apply to a Community design that has been produced as a result of a commission. Indeed, the Community legislature intended to define the special system set out in Article 14(3) of the regulation by reference to a specific type of contractual relationship, namely that of an employment relationship, which precludes the application of Article 14(3) to other contractual relationships, such as that relating to a Community design that has been produced as a result of a commission. (see paras 44, 51, 55, operative part 1) 2. Where, on the one hand, there are unregistered Community designs produced as a result of a commission, and on the other, the national legislation does not deem such designs to be the same as designs developed in the context of an employment relationship, Article 14(1) of Regulation No 6/2002 on Community designs must be interpreted as meaning that the right to the Community design vests in the designer, unless it has been assigned by way of contract to his successor in title. The possibility of assigning by way of contract the right to the Community design from the designer to his successor in title within the meaning of Article 14(1) of the regulation both stems from the wording of that article and is consistent with the aims of the regulation. In that regard, adapting the protection of Community designs to the needs of all sectors of industry in the Community by means of a contractual assignment of the right to the Community design is likely to help to achieve the essential objective of the enforcement of the rights conferred by a Community design in an efficient manner throughout the territory of the Community. Moreover, enhanced protection for industrial design not only promotes the contribution of individual designers to the sum of Community excellence in the field, but also encourages innovation and development of new products and investment in their production. It is, however, for the national court to ascertain the contents of such a contract and in that regard to determine whether the right to the unregistered Community design has in fact been transferred from the designer to his successor in title, by applying, in the context of that assessment, the law on contracts in order to determine who owns the right to the unregistered Community design, in accordance with Article 14(1) of the regulation. (see paras 62, 77-82, operative part 2)