2002R0006 — EN — 01.05.2004 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL REGULATION (EC) No 6/2002
of 12 December 2001
on Community designs
(OJ L 3, 5.1.2002, p. 1)
Amended by:
Official Journal
No page date
►A1 Act concerning the conditions of accession of the Czech Republic, the
Republic of Estonia, the Republic of Cyprus, the Republic of Latvia,the Republic of Lithuania, the Republic of Hungary, the Republic ofMalta, the Republic of Poland, the Republic of Slovenia and the Slovak
Republic and the adjustments to the Treaties on which the European
Union is foundedL 236 33 23.9.2003
▼B
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 to which
uniform protection is given with uniform effect throughout theentire territory of the Community would further the objectivesof the Community as laid down in the Treaty.
(2) Only the Benelux countries have introduced a uniform designprotection law. In all the other Member States the protection ofdesigns is a matter for the relevant national law and is confinedto the territory of the Member State concerned. Identical designs
may be therefore protected differently in different Member
States and for the benefit of different owners. This inevitablyleads to conflicts in the course of trade between Member States.
(3) The substantial differences between Member States' design laws
prevent and distort Community-wide competition. In comparison
with domestic trade in, and competition between, products incor-porating a design, trade and competition within the Communityare prevented and distorted by the large number of applications,offices, procedures, laws, nationally circumscribed exclusive
rights and the combined administrative expense with correspond-
ingly high costs and fees for the applicant. Directive 98/71/EC ofthe European Parliament and of the Council of 13 October 1998on the legal protection of designs (
4) contributes to remedying
this situation.
(4) The effect of design protection being limited to the territory ofthe individual Member States whether or not their laws areapproximated, leads to a possible division of the internal marketwith respect to products incorporating a design which is thesubject of national rights held by different individuals, and hence
constitutes an obstacle to the free movement of goods.
(5) This calls for the creation of a Community design which is
directly applicable in each Member State, because only in thisway will it be possible to obtain, through one application made
to the Office for Harmonisation in the Internal Market (Trade
Marks and Design) in accordance with a single procedure underone law, one design right for one area encompassing all MemberStates.
(6) Since the objectives of the proposed action, namely, the protec-tion of one design right for one area encompassing all theMember States, cannot be sufficiently achieved by the MemberStates by reason of the scale and the effects of the creation of aCommunity design and a Community design authority and can
therefore, and can therefore be better achieved at Community
level, the Community may adopt measures, in accordance withthe principle of subsidiarity as set out in Article 5 of the Treaty.2002R0006 — EN — 01.05.2004 — 001.001 — 2
(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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In accordance with the principle of proportionality, as set out in
that Article, this Regulation does not go beyond what is neces-sary in order to achieve those objectives.
(7) 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 anddevelopment of new products and investment in their production.
(8) Consequently a more accessible design-protection systemadapted to the needs of the internal market is essential forCommunity industries.
(9) The substantive provisions of this Regulation on design lawshould be aligned with the respective provisions in Directive98/71/EC.
(10) Technological innovation should not be hampered by grantingdesign protection to features dictated solely by a technical func-tion. It is understood that this does not entail that a design must
have an aesthetic quality. Likewise, the interoperability of
products of different makes should not be hindered by extendingprotection to the design of mechanical fittings. Consequently,those features of a design which are excluded from protectionfor those reasons should not be taken into consideration for thepurpose of assessing whether other features of the design fulfil
the requirements for protection.
(11) The mechanical fittings of modular products may nevertheless
constitute an important element of the innovative characteristicsof modular products and present a major marketing asset, andtherefore should be eligible for protection.
(12) Protection should not be extended to those component partswhich are not visible during normal use of a product, nor tothose features of such part which are not visible when the partis mounted, or which would not, in themselves, fulfil the require-
ments as to novelty and individual character. Therefore, those
features of design which are excluded from protection for thesereasons should not be taken into consideration for the purpose ofassessing whether other features of the design fulfil the require-ments for protection.
(13) Full-scale approximation of the laws of the Member States onthe use of protected designs for the purpose of permitting therepair of a complex product so as to restore its original appear-
ance, where the design is applied to or incorporated in a product
which constitutes a component part of a complex product uponwhose appearance the protected design is dependent, could notbe achieved through Directive 98/71/EC. Within the frameworkof the conciliation procedure on the said Directive, the Commis-
sion undertook to review the consequences of the provisions of
that Directive three years after the deadline for transposition ofthe Directive in particular for the industrial sectors which aremost affected. Under these circumstances, it is appropriate notto confer any protection as a Community design for a designwhich is applied to or incorporated in a product which consti-
tutes a component part of a complex product upon whose
appearance the design is dependent and which is used for thepurpose of the repair of a complex product so as to restore itsoriginal appearance, until the Council has decided its policy onthis issue on the basis of a Commission proposal.
(14) The assessment as to whether a design has individual charactershould be based on whether the overall impression produced on
an informed user viewing the design clearly differs from that
produced on him by the existing design corpus, taking intoconsideration the nature of the product to which the design isapplied or in which it is incorporated, and in particular theindustrial sector to which it belongs and the degree of freedomof the designer in developing the design.2002R0006 — EN — 01.05.2004 — 001.001 — 3
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(15) A Community design should, as far as possible, serve the needs
of all sectors of industry in the Community.
(16) Some of those sectors produce large numbers of designs for
products frequently having a short market life where protectionwithout the burden of registration formalities is an advantageand the duration of protection is of lesser significance. On the
other hand, there are sectors of industry which value the advan-
tages of registration for the greater legal certainty it provides andwhich require the possibility of a longer term of protectioncorresponding to the foreseeable market life of their products.
(17) This calls for two forms of protection, one being a short-termunregistered design and the other being a longer term registereddesign.
(18) A registered Community design requires the creation and main-tenance of a register in which will be registered all those
applications which comply with formal conditions and which
have been accorded a date of filing. This registration systemshould in principle not be based upon substantive examinationas to compliance with requirements for protection prior to regis-tration, thereby keeping to a minimum the registration and otherprocedural burdens on applicants.
(19) A Community design should not be upheld unless the design isnew and unless it also possesses an individual character incomparison with other designs.
(20) It is also necessary to allow the designer or his successor in titleto test the products embodying the design in the market placebefore deciding whether the protection resulting from a regis-tered Community design is desirable. To this end it is necessaryto provide that disclosures of the design by the designer or hissuccessor in title, or abusive disclosures during a period of 12
months prior to the date of the filing of the application for a
registered Community design should not be prejudicial in asses-sing the novelty or the individual character of the design inquestion.
(21) The exclusive nature of the right conferred by the registeredCommunity design is consistent with its greater legal certainty.It is appropriate that the unregistered Community design should,however, constitute a right only to prevent copying. Protectioncould not therefore extend to design products which are theresult of a design arrived at independently by a second designer.
This right should also extend to trade in products embodying
infringing designs.
(22) The enforcement of these rights is to be left to national laws. Itis necessary therefore to provide for some basic uniform sanc-tions in all Member States. These should make it possible,
irrespective of the jurisdiction under which enforcement is
sought, to stop the infringing acts.
(23) Any third person who can establish that he has in good faithcommenced use even for commercial purposes within the
Community, or has made serious and effective preparations to
that end, of a design included within the scope of protection ofa registered Community design, which has not been copied fromthe latter, may be entitled to a limited exploitation of that design.
(24) It is a fundamental objective of this Regulation that the proce-
dure for obtaining a registered Community design should
present the minimum cost and difficulty to applicants, so as tomake it readily available to small and medium-sized enterprisesas well as to individual designers.
(25) Those sectors of industry producing large numbers of possiblyshort-lived designs over short periods of time of which onlysome may be eventually commercialised will find advantage inthe unregistered Community design. Furthermore, there is also aneed for these sectors to have easier recourse to the registeredCommunity design. Therefore, the option of combining a2002R0006 — EN — 01.05.2004 — 001.001 — 4
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number of designs in one multiple application would satisfy that
need. However, the designs contained in a multiple applicationmay be dealt with independently of each other for the purposes
of enforcement of rights, licensing, rights in rem, levy of execu-
tion, insolvency proceedings, surrender, renewal, assignment,deferred publication or declaration of invalidity.
(26) The normal publication following registration of a Communitydesign could in some cases destroy or jeopardise the success of
a commercial operation involving the design. The facility of a
deferment of publication for a reasonable period affords a solu-tion in such cases.
(27) A procedure for hearing actions concerning validity of a regis-tered Community design in a single place would bring savingsin costs and time compared with procedures involving different
national courts.
(28) It is therefore necessary to provide safeguards including a right
of appeal to a Board of Appeal, and ultimately to the Court ofJustice. Such a procedure would assist the development ofuniform interpretation of the requirements governing the validityof Community designs.
(29) It is essential that the rights conferred by a Community design
can be enforced in an efficient manner throughout the territory
of the Community.
(30) The litigation system should avoid as far as possible ‘forumshopping’. It is therefore necessary to establish clear rules ofinternational jurisdiction.
(31) This Regulation does not preclude the application to designs
protected by Community designs of the industrial property laws
or other relevant laws of the Member States, such as thoserelating to design protection acquired by registration or thoserelating to unregistered designs, trade marks, patents and utilitymodels, unfair competition or civil liability.
(32) In the absence of the complete harmonisation of copyright law,
it is important to establish the principle of cumulation of protec-
tion under the Community design and under copyright law,whilst leaving Member States free to establish the extent ofcopyright protection and the conditions under which such protec-tion is conferred.
(33) The measures necessary for the implementation of this Regula-
tion should be adopted in accordance with Council Decision
1999/468/EC of 28 June 1999 laying down the procedures forthe exercise of implementing powers conferred on the Commis-sion (
1),
HAS ADOPTED THIS REGULATION:
TITLE I
GENERAL PROVISIONS
Article 1
Community design
1. A design which complies with the conditions contained in this
Regulation is hereinafter referred to as a ‘Community design’.
2. A design shall be protected:
(a) by an ‘unregistered Community design’, if made available to the
public in the manner provided for in this Regulation;2002R0006 — EN — 01.05.2004 — 001.001 — 5
(1) OJ L 184, 17.7.1999, p. 23.
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(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 not be registered,
transferred or surrendered or be the subject of a decision declaring itinvalid, nor shall its use be prohibited, save in respect of the wholeCommunity. This principle and its implications shall apply unlessotherwise provided in this Regulation.
Article 2
Office
The Office for Harmonisation in the Internal Market (Trade Marks and
Designs), hereinafter referred to as ‘the Office’, instituted by Council
Regulation (EC) No 40/94 of 20 December 1993 on the Community
trade mark (
1), hereinafter referred to as the ‘Regulation on the
Community trade mark’, shall carry out the tasks entrusted to it bythis 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, the lines, contours,colours, shape, texture and/or materials of the product itself and/orits ornamentation;
(b) ‘product’ means any industrial or handicraft item, including inter
alia parts intended to be assembled into a complex product, packa-
ging, get-up, graphic symbols and typographic typefaces, butexcluding computer programs;
(c) ‘complex product’ means a product which is composed of multiple
components which can be replaced permitting disassembly and re-assembly of the product.
Article 4
Requirements for protection
1. A design shall be protected by a Community design to the 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 only be considered to benew and to have individual character:
(a) if the component part, once it has been incorporated into the
complex product, remains visible during normal use of the latter;and
(b) to the extent that those visible features of the component part fulfil
in themselves the requirements as to novelty and individual char-
acter.
3. ‘Normal use’ within the meaning of paragraph (2)(a) shall mean
use by the end user, excluding maintenance, servicing or repair work.2002R0006 — EN — 01.05.2004 — 001.001 — 6
(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 5
Novelty
1. A design shall be considered to be new if no identical design 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 is claimed 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 the design for whichprotection is claimed, or, if priority is claimed, the date of priority.
2. Designs shall be deemed to be identical if their features differ
only in immaterial details.
Article 6
Individual character
1. A design shall be considered to have individual character if the
overall impression it produces on the informed user differs from the
overall impression produced on such a user by any design which hasbeen made available to the public:
(a) in the case of an unregistered Community design, before the date
on which the design for which protection is claimed has first beenmade available to the public;
(b) in the case of a registered Community design, before the date of
filing the application for registration or, if a priority is claimed,the date of priority.
2. In assessing individual character, the degree of freedom of the
designer in developing the design shall be taken into consideration.
Article 7
Disclosure
1. For the purpose of applying Articles 5 and 6, a design shall be
deemed to have been made available to the public if it has beenpublished following registration or otherwise, or exhibited, used intrade or otherwise disclosed, before the date referred 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 events could not reasonably have becomeknown in the normal course of business to the circles specialised inthe sector concerned, operating within the Community. The designshall not, however, be deemed to have been made available to the
public for the sole reason that it has been disclosed to a third person
under explicit or implicit conditions of confidentiality.
2. A disclosure shall not be taken into consideration for the purpose
of applying Articles 5 and 6 and if a design for which protection isclaimed under a registered Community design has been made availableto the public:
(a) by the designer, his successor in title, or a third person as a result
of information provided or action taken by the designer or his
successor in title; and
(b) during the 12-month period preceding the date of filing of the
application or, if a priority is claimed, the date of priority.
3. Paragraph 2 shall also apply if the design has been made avail-
able to the public as a consequence of an abuse in relation to thedesigner or his successor in title.2002R0006 — EN — 01.05.2004 — 001.001 — 7
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Article 8
Designs dictated by their technical function and designs of inter-
connections
1. A Community design shall not subsist in features of appearance
of a product which are solely dictated by its technical function.
2. A Community design shall not subsist in features of appearance
of a product which must necessarily be reproduced in their exact formand dimensions in order to permit the product in which the design isincorporated or to which it is applied to be mechanically connected toor placed in, around or against another product so that either productmay perform its function.
3. Notwithstanding paragraph 2, a Community design shall under
the conditions set out in Articles 5 and 6 subsist in a design servingthe purpose of allowing the multiple assembly or connection ofmutually interchangeable products within a modular system.
Article 9
Designs contrary to public policy or morality
A Community design shall not subsist in a design which is contrary 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 Community design
shall include any design which does not produce on the informed usera different overall impression.
2. In assessing the scope of protection, the degree of freedom of the
designer in developing his design shall be taken into consideration.
Article 11
Commencement and term of protection of the unregistered
Community design
1. A design which meets the requirements under Section 1 shall be
protected by an unregistered Community design for a period of threeyears as from the date on which the design was first made available
to the public within the Community.
2. For the purpose of paragraph 1, a design shall be deemed to have
been made available to the public within the Community if it has beenpublished, exhibited, used in trade or otherwise disclosed in such a way
that, in the normal course of business, these events could reasonably
have become known to the circles specialised in the sector concerned,operating within the Community. The design shall not, however, bedeemed to have been made available to the public for the sole reasonthat it has been disclosed to a third person under explicit or implicitconditions of confidentiality.
Article 12
Commencement and term of protection of the registered Commu-
nity design
Upon registration by the Office, a design which meets the requirements
under Section 1 shall be protected by a registered Community design
for a period of five years as from the date of the filing of the applica-tion. The right holder may have the term of protection renewed for oneor more periods of five years each, up to a total term of 25 years fromthe date of filing.2002R0006 — EN — 01.05.2004 — 001.001 — 8
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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 person expressly authorisedby him, provided that the renewal fee has been paid.
2. The Office shall inform the right holder of the registered Commu-
nity design and any person having a right entered in the register of
Community designs, referred to in Article 72, hereafter referred to as
the ‘register’ in respect of the registered Community design, of theexpiry of the registration in good time before the said expiry. Failureto give such information shall not involve the responsibility of theOffice.
3. The request for renewal shall be submitted and the renewal fee
paid within a period of six months ending on the last day of the month
in which protection ends. Failing this, the request may be submitted
and the fee paid within a further period of six months from the dayreferred to in the first sentence, provided that an additional fee is paidwithin this further period.
4. Renewal shall take effect from the day following the date on
which the existing registration expires. The renewal shall be enteredin 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 the designer 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, where a design is developed by an employee in the
execution of his duties or following the instructions given by hisemployer, the right to the Community design shall vest in the
employer, unless otherwise agreed or specified under national law.
Article 15
Claims relating to the entitlement to a Community design
1. If an unregistered Community design is disclosed or claimed by,
or a registered Community design has been applied for or registered inthe name of, a person who is not entitled to it under Article 14, the
person entitled to it under that provision may, without prejudice to
any other remedy which may be open to him, claim to become recog-nised as the legitimate holder of the Community design.
2. Where a person is jointly entitled to a Community design, that
person may, in accordance with paragraph 1, claim to become recog-nised as joint holder.
3. Legal proceedings under paragraphs 1 or 2 shall be barred three
years after the date of publication of a registered Community designor the date of disclosure of an unregistered Community design. This
provision shall not apply if the person who is not entitled to the
Community design was acting in bad faith at the time when suchdesign was applied for or disclosed or was assigned to him.
4. In the case of a registered Community design, the following shall
be entered in the register:
(a) the mention that legal proceedings under paragraph 1 have been
instituted;
(b) the final decision or any other termination of the proceedings;2002R0006 — EN — 01.05.2004 — 001.001 — 9
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(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 a registered
Community design as a result of legal proceedings under Article15(1), licences and other rights shall lapse upon the entering in theregister of the person entitled.
2. If, before the institution of the legal proceedings under Article
15(1) has been registered, the holder of the registered Communitydesign or a licensee has exploited the design within the Community ormade serious and effective preparations to do so, he may continue suchexploitation provided that he requests within the period prescribed by
the implementing regulation a non-exclusive licence from the new
holder whose name is entered in the register. The licence shall begranted for a reasonable period and upon reasonable terms.
3. Paragraph 2 shall not apply if the holder of the registered
Community design or the licensee was acting in bad faith at the timewhen he began to exploit the design or to make preparations to do so.
Article 17
Presumption in favour of the registered holder of the design
The person in whose name the registered Community design is regis-
tered or, prior to registration, the person in whose name theapplication is filed, shall be deemed to be the person entitled in anyproceedings before the Office as well as in any other proceedings.
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 suchbefore the Office and in the register. If the design is the result of team-work, the citation of the team may replace the citation of the individual
designers.
Section 4
Effects of the Community design
Article 19
Rights conferred by the Community design
1. A registered Community design shall confer on its holder the
exclusive right to use it and to prevent any third party not having hisconsent from using it. The aforementioned use shall cover, in parti-cular, the making, offering, putting on the market, importing,exporting or using of a product in which the design is incorporated orto which it is applied, or stocking such a product for those purposes.
2. An unregistered Community design shall, however, confer on its
holder the right to prevent the acts referred to in paragraph 1 only ifthe contested use results from copying the protected design.
The contested use shall not be deemed to result from copying the
protected design if it results from an independent work of creation by
a designer who may be reasonably thought not to be familiar with the
design made available to the public by the holder.
3. Paragraph 2 shall also apply to a registered Community design
subject to deferment of publication as long as the relevant entries inthe register and the file have not been made available to the public inaccordance with Article 50(4).2002R0006 — EN — 01.05.2004 — 001.001 — 10
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Article 20
Limitation of the rights conferred by a Community design
1. The rights conferred by a Community design shall not be exer-
cised in respect of:
(a) acts done privately and for non-commercial purposes;
(b) acts done for experimental purposes;
(c) acts of reproduction for the purpose of making citations or of
teaching, provided that such acts are compatible with fair tradepractice and do not unduly prejudice the normal exploitation of
the design, and that mention is made of the source.
2. In addition, the rights conferred by a Community design shall 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 the Community;
(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 extend to acts
relating to a product in which a design included within the scope ofprotection of the Community design is incorporated or to which it isapplied, when the product has been put on the market in the Commu-
nity by the holder of the Community design or with his consent.
Article 22
Rights of prior use in respect of a registered Community design
1. A right of prior use shall exist for any third person who can
establish that before the date of filing of the application, or, if a
priority is claimed, before the date of priority, he has in good faith
commenced use within the Community, or has made serious and effec-tive preparations to that end, of a design included within the scope ofprotection of a registered Community design, which has not beencopied from the latter.
2. The right of prior use shall entitle the third person to exploit the
design for the purposes for which its use had been effected, or forwhich serious and effective preparations had been made, before thefiling or priority date of the registered Community design.
3. The right of prior use shall not extend to granting a licence to
another person to exploit the design.
4. The right of prior use cannot be transferred except, where the
third person is a business, along with that part of the business in thecourse of which the act was done or the preparations were made.
Article 23
Government use
Any provision in the law of a Member State allowing use of national
designs by or for the government may be applied to Communitydesigns, but only to the extent that the use is necessary for essentialdefence or security needs.2002R0006 — EN — 01.05.2004 — 001.001 — 11
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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 procedure in TitlesVI and VII or by a Community design court on the basis of a counter-claim 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 a court or on the basisof a counterclaim in infringement proceedings.
Article 25
Grounds for invalidity
1. A Community design may be declared invalid only in the
following 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 date of filing ofthe application or, if a priority is claimed, the date of priority ofthe Community design, and which is protected from a date prior
to the said date by a registered Community design or an application
for such a design, or by a registered design right of a MemberState, or by an application 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 governing that sign confers onthe right holder of the sign the right to prohibit 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 the Protection ofIndustrial Property hereafter referred to as the ‘Paris Convention’,
or of badges, emblems and escutcheons other than those covered
by the said Article 6ter and which are of particular public interestin a Member State.
2. The ground provided for in paragraph (1)(c) may be invoked
solely by the person who is entitled to the Community design 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 the earlier right.
4. The ground provided for in paragraph (1)(g) may be invoked
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 grounds provided for in paragraphs1(d) and (g) may also be invoked by the appropriate authority of theMember State in question on its own initiative.
6. A registered Community design which has been declared invalid
pursuant to paragraph (1)(b), (e), (f) or (g) may be maintained in anamended form, if in that form it complies with the requirements forprotection and the identity of the design is retained. ‘Maintenance’ inan amended form may include registration accompanied by a partial2002R0006 — EN — 01.05.2004 — 001.001 — 12
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disclaimer by the holder of the registered Community design or entry
in the register of a court decision or a decision by the Office declaringthe partial invalidity of the registered Community design.
Article 26
Consequences of invalidity
1. A Community design shall be deemed not to have had, as from
the outset, the effects specified in this Regulation, to the extent that it
has been declared invalid.
2. Subject to the national provisions relating either to claims for
compensation for damage caused by negligence or lack of good faithon the part of the holder of the Community design, or to unjust enrich-
ment, the retroactive effect of invalidity of the Community design shall
not affect:
(a) any decision on infringement which has acquired the authority of a
final decision and been enforced prior to the invalidity decision;
(b) any contract concluded prior to the invalidity decision, in so far as
it has been performed before the decision; however, repayment, toan extent justified by the circumstances, of sums paid under the
relevant contract may be claimed on grounds of equity.
TITLE III
COMMUNITY DESIGNS AS OBJECTS OF PROPERTY
Article 27
Dealing with Community designs as national design rights
1. Unless Articles 28, 29, 30, 31 and 32 provide otherwise, a
Community design as an object of property shall be dealt with in its
entirety, and for the whole area of the Community, as a national design
right of the Member State in which:
(a) the holder has his seat or his domicile on the relevant date; or
(b) where point (a) does not apply, the holder has an establishment on
the relevant date.
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 the
condition under paragraph 1, the Member State referred to in that para-graph shall be determined:
(a) in the case of an unregistered Community design, by reference to
the relevant joint holder designated by them by common agree-ment;
(b) in the case of a registered Community design, by reference to the
first of the relevant joint holders in the order in which they arementioned in the register.
4. Where paragraphs 1, 2 and 3 do not apply, the Member State
referred to in paragraph 1 shall be the Member State in which the seat
of the Office is situated.
Article 28
Transfer of the registered Community design
The transfer of a registered Community design shall be subject to 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 rights arising from the regis-tration of the Community design;2002R0006 — EN — 01.05.2004 — 001.001 — 13
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(c) where there are time limits to be observed in dealings with the
Office, the successor in title may make the corresponding state-ments to the Office once the request for registration of the transfer
has been received by the Office;
(d) all documents which by virtue of Article 66 require notification to
the holder of the registered Community design shall be addressedby the Office to the person registered as holder or his representa-tive, if one has been appointed.
Article 29
Rights in rem on a registered Community design
1. A registered Community design may be given as security or be
the subject of rights in rem .
2. On request of one of the parties, the rights mentioned in para-
graph 1 shall be entered in the register and published.
Article 30
Levy of execution
1. A registered Community design may be levied in execution.
2. As regards the procedure for levy of execution in respect of a
registered Community design, the courts and authorities of the Member
State determined in accordance with Article 27 shall have exclusivejurisdiction.
3. On request of one of the parties, levy of execution shall be
entered in the register and published.
Article 31
Insolvency proceedings
1. The only insolvency proceedings in which a Community design
may be involved shall be those opened in the Member State withinthe territory of which the centre of a debtor's main interests is situated.
2. In the case of joint proprietorship of a Community design, para-
graph 1 shall apply to the share of the joint proprietor.
3. Where a Community design is involved in insolvency proceed-
ings, on request of the competent national authority an entry to thiseffect shall be made in the register and published in the CommunityDesigns Bulletin referred to in Article 73(1).
Article 32
Licensing
1. A Community design may be licensed for the whole or part 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 by the Community
design against a licensee who contravenes any provision in his licen-
sing contract with regard to its duration, the form in which the designmay be used, the range of products for which the licence is granted andthe quality of products manufactured by the licensee.
3. Without prejudice to the provisions of the licensing contract, the
licensee may bring proceedings for infringement of a Communitydesign only if the right holder consents thereto. However, the holderof an exclusive licence may bring such proceedings if the right holderin the Community design, having been given notice to do so, does not
himself bring infringement proceedings within an appropriate period.
4. A licensee shall, for the purpose of obtaining compensation for
damage suffered by him, be entitled to intervene in an infringementaction brought by the right holder in a Community design.2002R0006 — EN — 01.05.2004 — 001.001 — 14
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5. In the case of a registered Community design, the grant or
transfer of a licence in respect of such right shall, at the request ofone of the parties, be entered in the register and published.
Article 33
Effects vis-à-vis third parties
1. The effects vis-à-vis third parties of the legal acts referred to in
Articles 28, 29, 30 and 32 shall be governed by the law of the MemberState determined in accordance with Article 27.
2. However, as regards registered Community designs, legal acts
referred to in Articles 28, 29 and 32 shall only have effect vis-à-vis
third parties in all the Member States after entry in the register. Never-theless, such an act, before it is so entered, shall have effect vis-à-visthird parties who have acquired rights in the registered Communitydesign after the date of that act but who knew of the act at the dateon which the rights were acquired.
3. Paragraph 2 shall not apply to a person who acquires the regis-
tered Community design or a right concerning the registered
Community design by way of transfer of the whole of the undertakingor 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-vis third partiesof insolvency proceedings shall be governed by the law of the MemberState in which such proceedings are first brought under the nationallaw or the regulations applicable in this field.
Article 34
The application for a registered Community design as an object of
property
1. An application for a registered Community design as an object of
property shall be dealt with in its entirety, and for the whole area of the
Community, as a national design right of the Member State determined
in accordance with Article 27.
2. Articles 28, 29, 30, 31, 32 and 33 shall apply mutatis mutandis to
applications for registered Community designs. Where the effect of oneof these provisions is conditional upon an entry in the register, thatformality shall be performed upon registration of the resulting regis-tered Community design.
TITLE IV
APPLICATION FOR A REGISTERED COMMUNITY DESIGN
Section 1
Filing of applications and the conditions which govern them
Article 35
Filing and forwarding of applications
1. An application for a registered Community design shall be 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 industrial property
office of a Member State or at the Benelux Design Office, that officeshall take all steps to forward the application to the Office within twoweeks after filing. It may charge the applicant a fee which shall notexceed the administrative costs of receiving and forwarding the appli-cation.2002R0006 — EN — 01.05.2004 — 001.001 — 15
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3. As soon as the Office has received an application which has been
forwarded by a central industrial property office of a Member State orby the Benelux Design Office, it shall inform the applicant accordingly,
indicating the date of its receipt at the Office.
4. No less than 10 years after the entry into force of this Regulation,
the Commission shall draw up a report on the operation of the system
of filing applications for registered Community designs, accompanied
by any proposals for revision that it may deem appropriate.
Article 36
Conditions with which applications must comply
1. An application for a registered Community design shall contain:
(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-dimensional design and the
application contains a request for deferment of publication in
accordance with Article 50, the representation of the design maybe replaced by a specimen.
2. The application shall further contain an indication of the products
in which the design is intended to be incorporated or to which it is
intended to be applied.
3. In addition, the application may contain:
(a) a description explaining the representation or the specimen;
(b) a request for deferment of publication of the registration in accor-
dance 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 intended to
be incorporated or to which it is intended to be applied accordingto class;
(e) the citation of the designer or of the team of designers or a state-
ment under the applicant's responsibility that the designer or theteam of designers has waived the right to be cited.
4. The application shall be subject to the payment of the registration
fee and the publication fee. Where a request for deferment under para-graph 3(b) is filed, the publication fee shall be replaced by the fee fordeferment of publication.
5. The application shall comply with the conditions laid down in the
implementing regulation.
6. The information contained in the elements mentioned in para-
graph 2 and in paragraph 3(a) and (d) shall not affect the scope ofprotection of the design as such.
Article 37
Multiple applications
1. Several designs may be combined in one multiple application for
registered Community designs. Except in cases of ornamentation, this
possibility is subject to the condition that the products in which the
designs are intended to be incorporated or to which they are intendedto be applied all belong to the same class of the International Classifi-cation for Industrial Designs.
2. Besides the fees referred to in Article 36(4), the multiple applica-
tion shall be subject to payment of an additional registration fee and anadditional publication fee. Where the multiple application contains arequest for deferment of publication, the additional publication feeshall be replaced by the additional fee for deferment of publication.2002R0006 — EN — 01.05.2004 — 001.001 — 16
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The additional fees shall correspond to a percentage of the basic fees
for each additional design.
3. The multiple application shall comply with the conditions of
presentation laid down in the implementing regulation.
4. Each of the designs contained in a multiple application or regis-
tration may be dealt with separately from the others for the purpose of
applying this Regulation. It may in particular, separately from the
others, be enforced, licensed, be the subject of a right in rem , a levy
of execution or insolvency proceedings, be surrendered, renewed orassigned, be the subject of deferred publication or be declared invalid.A multiple application or registration may be divided into separateapplications or registrations only under the conditions set out in the
implementing regulation.
Article 38
Date of filing
1. The date of filing of an application for a registered Community
design shall be the date on which documents containing the informa-tion specified in Article 36(1) are filed with the Office by theapplicant, or, if the application has been filed with the central industrialproperty office of a Member State or with the Benelux Design Office,
with that office.
2. By derogation from paragraph 1, the date of filing of an applica-
tion filed with the central industrial property office of a Member Stateor with the Benelux Design Office and reaching the Office more thantwo months after the date on which documents containing the informa-
tion specified in Article 36(1) have been filed shall be the date of
receipt of such documents by the Office.
Article 39
Equivalence of Community filing with national filing
An application for a registered Community design which has been
accorded a date of filing shall, in the Member States, be equivalent toa regular national filing, including where appropriate the priorityclaimed for the said application.
Article 40
Classification
For the purpose of this Regulation, use shall be made of the Annex to
the Agreement establishing an International Classification for Industrial
Designs, signed at Locarno on 8 October 1968.
Section 2
Priority
Article 41
Right of priority
1. A person who has duly filed an application for a design right or
for a utility model in or for any State party to the Paris Convention for
the Protection of Industrial Property, or to the Agreement establishingthe World Trade Organisation, or his successors in title, shall enjoy, forthe purpose of filing an application for a registered Community designin respect of the same design or utility model, a right of priority of sixmonths from the date of filing of the first application.
2. Every filing that is equivalent to a regular national filing under
the national law of the State where it was made or under bilateral ormultilateral agreements shall be recognised as giving rise to a right ofpriority.2002R0006 — EN — 01.05.2004 — 001.001 — 17
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3. ‘Regular national filing’ means any filing that is sufficient to
establish the date on which the application was filed, whatever maybe 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 or in respect of the
same State, shall be considered as the first application for the purpose
of determining priority, provided that, at the date of the filing of thesubsequent application, the previous application has been withdrawn,abandoned or refused without being open to public inspection andwithout leaving any rights outstanding, and has not served as a basisfor claiming priority. The previous application may not thereafter serve
as a basis for claiming a right of priority.
5. If the first filing has been made in a State which is not a party to
the Paris Convention, or to the Agreement establishing the World
Trade Organisation, paragraphs 1 to 4 shall apply only in so far as
that State, according to published findings, grants, on the basis of afiling made at the Office and subject to conditions equivalent to thoselaid down in this Regulation, a right of priority having equivalenteffect.
Article 42
Claiming priority
An applicant for a registered Community design desiring to take advan-
tage of the priority of a previous application shall file a declaration of
priority and a copy of the previous application. If the language of the
latter is not one of the languages of the Office, the Office may requirea translation of the previous application in one of those languages.
Article 43
Effect of priority right
The effect of the right of priority shall be that the date of priority shall
count as the date of the filing of the application for a registeredCommunity design for the purpose of Articles 5, 6, 7, 22, 25(1)(d)and 50(1).
Article 44
Exhibition priority
1. If an applicant for a registered Community design has disclosed
products in which the design is incorporated, or to which it is applied,
at an official or officially recognised international exhibition falling
within the terms of the Convention on International Exhibitions signedin Paris on 22 November 1928 and last revised on 30 November 1972,he may, if he files the application within a period of six months fromthe date of the first disclosure of such products, claim a right of
priority 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 implementing regulation, must
file evidence that he has disclosed at an exhibition the products in or to
which the design is incorporated or applied.
3. An exhibition priority granted in a Member State or in a third
country does not extend the period of priority laid down in Article 41.
TITLE V
REGISTRATION PROCEDURE
Article 45
Examination as to formal requirements for filing
1. The Office shall examine whether the application complies with
the requirements laid down in Article 36(1) for the accordance of adate of filing.2002R0006 — EN — 01.05.2004 — 001.001 — 18
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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 applica-tion, Article 37(1) and (2);
(b) the application meets the formal requirements laid down in the
implementing regulation for the implementation of Articles 36 and37;
(c) the requirements of Article 77(2) are satisfied;
(d) the requirements concerning the claim to priority are satisfied, if a
priority is claimed.
3. The conditions for the examination as to the formal requirements
for filing shall be laid down in the implementing regulation.
Article 46
Remediable deficiencies
1. Where, in carrying out the examination under Article 45, the
Office notes that there are deficiencies which may be corrected, theOffice shall request the applicant to remedy them within the prescribedperiod.
2. If the deficiencies concern the requirements referred to in Article
36(1) and the applicant complies with the Office's request within theprescribed period, the Office shall accord as the date of filing the dateon which the deficiencies are remedied. If the deficiencies are notremedied within the prescribed period, the application shall not be dealt
with as an application for a registered Community design.
3. If the deficiencies concern the requirements, including the
payment of fees, as referred to in Article 45(2)(a), (b) and (c) and theapplicant complies with the Office's request within the prescribed
period, the Office shall accord as the date of filing the date on which
the application was originally filed. If the deficiencies or the default inpayment are not remedied within the prescribed period, the Office shallrefuse the application.
4. If the deficiencies concern the requirements referred to in Article
45(2)(d), failure to remedy them within the prescribed period shall
result in the loss of the right of priority for the application.
Article 47
Grounds for non-registrability
1. If the Office, in carrying out the examination pursuant to Article
45, notices that the design for which protection is sought:
(a) does not correspond to the definition under Article 3(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 applicant has been
allowed the opportunity of withdrawing or amending the application orof submitting his observations.
Article 48
Registration
If the requirements that an application for a registered Community
design must satisfy have been fulfilled and to the extent that the appli-
cation has not been refused by virtue of Article 47, the Office shallregister the application in the Community design Register as a regis-tered Community design. The registration shall bear the date of filingof the application referred to in Article 38.2002R0006 — EN — 01.05.2004 — 001.001 — 19
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Article 49
Publication
Upon registration, the Office shall publish the registered Community
design in the Community Designs Bulletin as mentioned in Article73(1). The contents of the publication shall be set out in the imple-menting regulation.
Article 50
Deferment of publication
1. The applicant for a registered Community design may request,
when filing the application, that the publication of the registeredCommunity design be deferred for a period of 30 months from thedate of filing the application or, if a priority is claimed, from the dateof priority.
2. Upon such request, where the conditions set out in Article 48 are
satisfied, the registered Community design shall be registered, butneither the representation of the design nor any file relating to theapplication shall, subject to Article 74(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 the registered Commu-nity design. The mention shall be accompanied by informationidentifying the right holder in the registered Community design, thedate of filing the application and any other particulars prescribed bythe implementing regulation.
4. At the expiry of the period of deferment, or at any earlier date on
request by the right holder, the Office shall open to public inspectionall the entries in the register and the file relating to the applicationand shall publish the registered Community design in the CommunityDesigns Bulletin, provided that, within the time limit laid down in the
implementing regulation:
(a) the publication fee and, in the event of a multiple application, the
additional publication fee are paid;
(b) where use has been made of the option pursuant to Article 36(1)(c),
the right holder has filed with the Office a representation of thedesign.
If the right holder fails to comply with these requirements, the regis-
tered Community design shall be deemed from the outset not to have
had the effects specified in this Regulation.
5. In the case of multiple applications, paragraph 4 need only be
applied to some of the designs included therein.
6. The institution of legal proceedings on the basis of a registered
Community design during the period of deferment of publication shall
be subject to the condition that the information contained in the register
and in the file relating to the application has been communicated to theperson against whom 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 be declared
to the Office in writing by the right holder. It shall not have effect until
it has been entered in the register.
2. If a Community design which is subject to deferment of publica-
tion is surrendered it shall be deemed from the outset not to have hadthe effects specified in this Regulation.2002R0006 — EN — 01.05.2004 — 001.001 — 20
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3. A registered Community design may be partially surrendered
provided that its amended form complies with the requirements forprotection and the identity of the design is retained.
4. Surrender shall be registered only with the agreement of the
proprietor of a right entered in the register. If a licence has been regis-
tered, surrender shall be entered in the register only if the right holderin the registered Community design proves that he has informed thelicensee of his intention to surrender. This entry shall be made onexpiry of the period prescribed by the implementing regulation.
5. If an action pursuant to Article 14 relating to the entitlement to a
registered Community design has been brought before a Communitydesign court, the Office shall not enter the surrender in the register
without the agreement of the claimant.
Article 52
Application for a declaration of invalidity
1. Subject to Article 25(2), (3), (4) and (5), any natural or legal
person, as well as a public authority empowered to do so, may submitto the Office an application for a declaration of invalidity of a regis-
tered Community design.
2. The application shall be filed in a written reasoned statement. It
shall not be deemed to have been filed until the fee for an applicationfor a declaration of invalidity has been paid.
3. An application for a declaration of invalidity shall not be admis-
sible if an application relating to the same subject matter and cause ofaction, and involving the same parties, has been adjudicated on by aCommunity design court and has acquired the authority of a final deci-sion.
Article 53
Examination of the application
1. If the Office finds that the application for a declaration of inva-
lidity is admissible, the Office shall examine whether the grounds forinvalidity referred to in Article 25 prejudice the maintenance of theregistered Community design.
2. In the examination of the application, which shall be conducted in
accordance with the implementing regulation, the Office shall invite
the parties, as often as necessary, to file observations, within a periodto be fixed by the Office, on communications from the other parties orissued 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 invalidity of a
registered Community design being filed, and as long as no final deci-sion has been taken by the Office, any third party who proves thatproceedings for infringement of the same design have been institutedagainst him may be joined as a party in the invalidity proceedings onrequest submitted within three months of the date on which the infrin-
gement proceedings were instituted.
The same shall apply in respect of any third party who proves both that
the right holder of the Community design has requested that he ceasean alleged infringement of the design and that he has institutedproceedings for a court ruling that he is not infringing the Communitydesign.
2. The request to be joined as a party shall be filed in a written
reasoned statement. It shall not be deemed to have been filed until theinvalidity fee, referred to in Article 52(2), has been paid. Thereafter the2002R0006 — EN — 01.05.2004 — 001.001 — 21
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request shall, subject to any exceptions laid down in the implementing
regulation, be treated 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, the Adminis-
tration of Trade Marks and Designs and Legal Division and InvalidityDivisions. It shall have suspensive effect.
2. A decision which does not terminate proceedings as regards one
of the parties can only be appealed together with the final decision,
unless the decision allows separate appeal.
Article 56
Persons entitled to appeal and to be parties to appeal proceedings
Any party to proceedings adversely affected by a decision may appeal.
Any other parties to the proceedings shall be parties to the appealproceedings as of right.
Article 57
Time limit and form of appeal
Notice of appeal must be filed in writing at the Office within two
months after the date of notification of the decision appealed from.The notice shall be deemed to have been filed only when the fee forappeal has been paid. Within four months after the date of notificationof the decision, a written statement setting out the grounds of appealmust be filed.
Article 58
Interlocutory revision
1. If the department whose decision is contested considers the
appeal to be admissible and well founded, it shall rectify its decision.This shall not apply where the appellant is opposed by another party tothe proceedings.
2. If the decision is not rectified within one month after receipt of
the statement of grounds, the appeal shall be remitted to the Board ofAppeal without delay and without comment as to its merits.
Article 59
Examination of appeals
1. If the appeal is admissible, the Board of Appeal shall examine
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 observations, within a periodto be fixed by the Board of Appeal, on communications from the otherparties or issued by itself.
Article 60
Decisions in respect of appeals
1. Following the examination as to the merits of the appeal, the
Board of Appeal shall decide on the appeal. The Board of Appealmay either exercise any power within the competence of the depart-ment which was responsible for the decision appealed against or remitthe case to that department for further prosecution.2002R0006 — EN — 01.05.2004 — 001.001 — 22
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2. If the Board of Appeal remits the case for further prosecution to
the department whose decision was appealed, that department shall bebound by the ratio decidendi of the Board of Appeal, in so far as the
facts are the same.
3. The decisions of the Boards of Appeal shall take effect only from
the date of expiry of the period referred to in Article 61(5) or, if an
action has been brought before the Court of Justice within that period,from the date of rejection of such action.
Article 61
Actions before the Court of Justice
1. Actions may be brought before the Court of Justice against deci-
sions of the Boards of Appeal on appeals.
2. The action may be brought on grounds of lack of competence,
infringement of an essential procedural requirement, infringement ofthe Treaty, of this Regulation or of any rule 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 within two
months of the date of notification of the decision of the Board of
Appeal.
6. The Office shall be required to take the necessary measures 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 they are based.
They shall be based only on reasons or evidence on which the partiesconcerned have had an opportunity to present their comments.
Article 63
Examination of the facts by the Office of its own motion
1. In proceedings before it the Office shall examine the facts of its
own motion. However, in proceedings relating to a declaration of inva-
lidity, the Office shall be restricted in this examination to the facts,evidence and arguments provided by the parties and the relief sought.
2. The Office may disregard facts or evidence which are not
submitted in due time by the parties concerned.
Article 64
Oral proceedings
1. If the Office considers that oral proceedings would be expedient,
they shall be held either at the instance of the Office or at the requestof any party to the proceedings.
2. Oral proceedings, including delivery of the decision, shall be
public, unless the department before which the proceedings are takingplace decides otherwise in cases where admission of the public could2002R0006 — EN — 01.05.2004 — 001.001 — 23
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have serious and unjustified disadvantages, in particular for a party to
the proceedings.
Article 65
Taking of evidence
1. In any proceedings before the Office the means of giving or
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) statements in writing, sworn or affirmed or having a similar effect
under the law of the State in which the statement is drawn up.
2. The relevant department of the Office may commission one of its
members to examine the evidence adduced.
3. If the Office considers it necessary for a party, witness or expert
to give evidence orally, it shall issue a summons to the personconcerned 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 be present and to putquestions to the witness or expert.
Article 66
Notification
The Office shall, as a matter of course, notify those concerned of deci-
sions and summonses and of any notice or other communication from
which a time limit is reckoned, or of which those concerned must benotified under other provisions of this Regulation or of the imple-menting regulation, or of which notification has been ordered by thePresident of the Office.
Article 67
Restitutio in integrum
1. The applicant for or holder of a registered Community design or
any other party to proceedings before the Office who, in spite of all
due care required by the circumstances having been taken, was unableto observe a time limit vis-à-vis the Office shall, upon application,have his rights re-established if the non-observance in question hasthe direct consequence, by virtue of the provisions of this Regulation,of causing the loss 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 with the time limit. The
omitted act must be completed within this period. The application shall
only be admissible within the year immediately following the expiry ofthe unobserved time limit. In the case of non-submission of the requestfor renewal of registration or of non-payment of a renewal fee, thefurther period of six months provided for in the second sentence ofArticle 13(3) shall be deducted from the period of one year.
3. The application must state the grounds on which it is based and
must set out the facts on which it relies. It shall not be deemed to be
filed until the fee for the re-establishment of rights 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).2002R0006 — EN — 01.05.2004 — 001.001 — 24
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6. Where the applicant for or holder of a registered Community
design has his rights re-established, he may not invoke his rights vis-à-vis a third party who, in good faith, in the course of the period
between the loss of rights in the application for or registration of the
registered Community design and publication of the mention of re-establishment of those rights, has put on the market products in whicha design included 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 para-
graph 6 may bring third party proceedings against the decision re-establishing the rights of the applicant for or holder of the registeredCommunity design within a period of two months as from the date ofpublication of the mention of re-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 with vis-à-vis the authorities of suchState.
Article 68
Reference to general principles
In the absence of procedural provisions in this Regulation, the imple-
menting regulation, the fees regulation or the rules of procedure of the
Boards of Appeal, the Office shall take into account the principles of
procedural law generally recognised in the Member States.
Article 69
Termination of financial obligations
1. Rights of the Office to the payment of fees shall be barred four
years from the end of the calendar year in which the fee fell due.
2. Rights against the Office for the refunding of fees or sums of
money paid in excess of a fee shall be barred after four years from
the end of the calendar year in which the right arose.
3. The periods laid down in paragraphs 1 and 2 shall be interrupted,
in the case covered by paragraph 1, by a request for payment of the feeand, in the case covered by paragraph 2, by a reasoned claim inwriting. On interruption it shall begin again immediately and shall end
at the latest six years after the end of the year in which it originally
began, unless in the meantime judicial proceedings to enforce the righthave begun. In this case the period shall end at the earliest one yearafter the judgment has acquired the authority of a final decision.
Section 2
Costs
Article 70
Apportionment of costs
1. The losing party in proceedings for a declaration of invalidity of a
registered Community design or appeal proceedings shall bear the feesincurred by the other party as well as all costs incurred by him essen-tial to the proceedings, including travel and subsistence and the
remuneration of an agent, adviser or advocate, within the limits of
scales set for each category of costs under the conditions laid down inthe implementing regulation.
2. However, where each party succeeds on some and fails on other
heads, or if reasons of equity so dictate, the Invalidity Division or
Board of Appeal shall decide a different apportionment of costs.
3. A party who terminates the proceedings by surrendering the regis-
tered Community design or by not renewing its registration or bywithdrawing the application for a declaration of invalidity or the2002R0006 — EN — 01.05.2004 — 001.001 — 25
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appeal, shall bear the fees and the costs incurred by the other party as
stipulated in paragraphs 1 and 2.
4. Where a case does not proceed to judgment, the costs shall be at
the discretion of the Invalidity Division or Board of Appeal.
5. Where the parties conclude before the Invalidity Division or
Board of Appeal a settlement of costs differing from that provided for
in paragraphs 1, 2, 3 and 4, the body concerned shall take note of thatagreement.
6. On request, the registry of the Invalidity Division or Board of
Appeal shall fix the amount of the costs to be paid pursuant to thepreceding paragraphs. The amount so determined may be reviewed by
a decision of the Invalidity Division or Board of Appeal on a request
filed within the period prescribed by the implementing regulation.
Article 71
Enforcement of decisions fixing the amount of costs
1. Any final decision of the Office fixing the amount of costs shall
be enforceable.
2. Enforcement shall be governed by the rules of civil procedure in
force in the State in the territory of which it is carried out. The orderfor its enforcement shall be appended to the decision, without any otherformality than verification of the authenticity of the decision, by thenational authority which the government of each Member State shall
designate for this purpose and shall make known to the Office and to
the Court of Justice.
3. When these formalities have been completed on application by
the party concerned, the latter may proceed to enforcement in accor-dance with the national law, by bringing the matter directly before thecompetent authority.
4. Enforcement may be suspended only by a decision of the Court
of Justice. However, the courts of the Member State concerned shall
have jurisdiction over complaints that enforcement 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 of Commu-
nity designs, which shall contain those particulars of which theregistration is provided for by this Regulation or by the implementingregulation. The register shall be open to public inspection, except to the
extent that Article 50(2) provides otherwise.
Article 73
Periodical publications
1. This Office shall periodically publish a Community Designs
Bulletin containing entries open to public inspection in the register as
well as other particulars the publication of which is prescribed by thisRegulation or by the implementing regulation.
2. Notices and information of a general character issued by the
President of the Office, as well as any other information relevant tothis Regulation or its implementation, shall be published in the OfficialJournal of the Office.2002R0006 — EN — 01.05.2004 — 001.001 — 26
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Article 74
Inspection of files
1. The files relating to applications for registered Community
designs which have not yet been published or the files relating to regis-tered Community designs which are subject to deferment of publication
in accordance with Article 50 or which, being subject to such defer-
ment, have been surrendered before or on the expiry of that period,shall not be made available for inspection without the consent of theapplicant for or the right holder in the registered Community design.
2. Any person who can establish a legitimate interest may inspect a
file without the consent of the applicant for or holder of the registered
Community design prior to the publication or after the surrender of the
latter in the case provided for in paragraph 1.
This shall in particular apply if the interested person proves that the
applicant for or the holder of the registered Community design hastaken steps with a view to invoking against him the right under theregistered Community design.
3. Subsequent to the publication of the registered Community
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 from inspection in accor-
dance with the provisions of the implementing regulation.
Article 75
Administrative cooperation
Unless otherwise provided in this Regulation or in national laws, the
Office and the courts or authorities of the Member States shall onrequest give assistance to each other by communicating information oropening files for inspection.
Where the Office opens files to inspection by courts, public prosecu-
tors' offices or central industrial property offices, the inspection shall
not be subject to the restrictions laid down in Article 74.
Article 76
Exchange of publications
1. The Office and the central industrial property offices of the
Member States shall despatch to each other on request and for their
own use one or more copies of their respective publications free ofcharge.
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 to be repre-
sented before the Office.
2. Without prejudice to the second subparagraph of paragraph 3,
natural or legal persons not having either their domicile or their prin-
cipal place of business or a real and effective industrial or commercial
establishment in the Community must be represented before the Officein accordance with Article 78(1) in all proceedings before the Officeestablished by this Regulation, other than in filing an application for aregistered Community design; the implementing regulation may permitother exceptions.2002R0006 — EN — 01.05.2004 — 001.001 — 27
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3. Natural or legal persons having their domicile or principal place
of business or a real and effective industrial or commercial establish-ment in the Community may be represented before the Office by one
of their employees, who must file with it a signed authorisation for
inclusion in the files, the details of which are set out in the imple-menting regulation.
An employee of a legal person to which this paragraph applies may
also represent other legal persons which have economic connections
with the first legal person, even if those other legal persons haveneither their domicile nor their principal place of business nor a realand effective industrial or commercial establishment within theCommunity.
Article 78
Professional representation
1. Representation of natural or legal persons in proceedings before
the Office under this Regulation may only be undertaken by:
(a) any legal practitioner qualified in one of the Member States and
having his place of business within the Community, to the extent
that he is entitled, within the said State, to act as a representativein industrial property matters; or
(b) any professional representatives whose name has been entered on
the list of professional representatives referred to in Article89(1)(b) of the Regulation on the Community trade mark; or
(c) persons whose names are entered on the special list of professional
representatives for design matters referred to in paragraph 4.
2. The persons referred to in paragraph 1(c) shall only be entitled to
represent third persons in proceedings on design matters before the
Office.
3. The implementing regulation shall provide whether and under
what conditions representatives must file with the Office a signedauthorisation for insertion on the files.
4. Any natural person may be entered on the special list of profes-
sional representatives in design matters, if he fulfils the followingconditions:
(a) he must be a national of one of the Member States;
(b) he must have his place of business or employment in the Commu-
nity;
(c) he must be entitled to represent natural or legal persons in design
matters before the central industrial property office of a MemberState or before the Benelux Design Office. Where, in that State,the entitlement to represent in design matters is not conditionalupon the requirement of special professional qualifications, persons
applying to be entered on the list must have habitually acted in
design matters before the central industrial property office of thesaid State for at least five years. However, persons whose profes-sional qualification to represent natural or legal persons in designmatters before the central industrial property office of one of the
Member States is officially recognised in accordance with the regu-
lations laid by such State shall not be subject to the condition ofhaving exercised the profession.
5. Entry on the list referred to in paragraph 4 shall be effected upon
request, accompanied by a certificate furnished by the central industrial
property office of the Member State concerned, which must indicate
that the conditions laid down in the said paragraph are fulfilled.
6. The President of the Office may grant exemption from:
(a) the requirement of paragraph 4(a) in special circumstances;
(b) the requirement of paragraph 4(c), second sentence, if the applicant
furnishes proof that he has acquired the requisite qualification inanother way.2002R0006 — EN — 01.05.2004 — 001.001 — 28
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7. The conditions under which a person may be removed from the
list shall be laid down in the implementing regulation.
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. Unless otherwise specified in this Regulation, the Convention on
Jurisdiction and the Enforcement of Judgements in Civil and Commer-cial Matters, signed in Brussels on 27 September 1968 (
1), hereinafter
referred to as the ‘Convention on Jurisdiction and Enforcement’, shall
apply to proceedings relating to Community designs and applicationsfor registered Community designs, as well as to proceedings relatingto actions on the basis of Community designs and national designsenjoying simultaneous protection.
2. The provisions of the Convention on Jurisdiction and Enforce-
ment which are rendered applicable by the paragraph 1 shall have
effect in respect of any Member State solely in the text which is inforce in respect of that State at any given time.
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 not apply;
(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 shall also be applicable topersons who do not have a domicile in any Member State buthave an establishment therein.
4. The provisions of the Convention on Jurisdiction and Enforce-
ment shall not have effect in respect of any Member State for whichthat Convention has not yet entered into force. Until such entry into
force, proceedings referred to in paragraph 1 shall be governed in
such a Member State by any bilateral or multilateral conventiongoverning its relationship with another Member State concerned, or, ifno such convention exists, by its domestic law on jurisdiction, recogni-tion and enforcement 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 as limited a
number as possible of national courts and tribunals of first and secondinstance (Community design courts) which shall perform the functionsassigned to them by this Regulation.2002R0006 — EN — 01.05.2004 — 001.001 — 29
(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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2. Each Member State shall communicate to the Commission not
later than 6 March 2005 a list of Community design courts, indicatingtheir names and their territorial jurisdiction.
3. Any change made after communication of the list referred to in
paragraph 2 in the number, names or territorial jurisdiction of theCommunity design courts shall be notified without delay by theMember State concerned to the Commission.
4. The information referred to in paragraphs 2 and 3 shall be noti-
fied by the Commission to the Member States and published in theOfficial Journal of the European Communities .
5. As long as a Member State has not communicated the list as
stipulated in paragraph 2, jurisdiction for any proceedings resultingfrom an action covered by Article 81 for which the courts of that State
have jurisdiction pursuant to Article 82 shall lie with that court of the
State in question which would have jurisdiction ratione loci and
ratione materiae in the case of proceedings relating to a national
design right of that State.
Article 81
Jurisdiction over infringement and validity
The Community design courts shall have exclusive jurisdiction:
(a) for infringement actions and — if they are permitted under national
law — actions in respect of threatened infringement of Communitydesigns;
(b) for actions for declaration of non-infringement of Community
designs, if they are permitted under national law;
(c) for actions for a declaration of invalidity of an unregistered
Community design;
(d) for counterclaims for a declaration of invalidity of a Community
design raised in connection with actions under (a).
Article 82
International jurisdiction
1. Subject to the provisions of this Regulation and to any provisions
of the Convention on Jurisdiction and Enforcement applicable by virtue
of Article 79, proceedings in respect of the actions and claims referredto in Article 81 shall be brought in the courts of the Member State inwhich the defendant is domiciled or, if he is not domiciled in any ofthe Member States, in any Member State in which he has an establish-ment.
2. If the defendant is neither domiciled nor has an establishment in
any of the Member States, such proceedings shall be brought in thecourts of the Member State in which the plaintiff is domiciled or, ifhe is not domiciled in any of the Member States, in any Member Statein which he has an establishment.
3. If neither the defendant nor the plaintiff is so domiciled or has
such an establishment, such proceedings shall be brought in the courtsof the Member State where the Office has its seat.
4. Notwithstanding paragraphs 1, 2 and 3:
(a) Article 17 of the Convention on Jurisdiction and Enforcement 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 design court.
5. Proceedings in respect of the actions and claims referred to in
Article 81(a) and (d) may also be brought in the courts of the MemberState in which the act of infringement has been committed or threa-tened.2002R0006 — EN — 01.05.2004 — 001.001 — 30
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Article 83
Extent of jurisdiction on infringement
1. A Community design court whose jurisdiction is based on Article
82(1), (2) (3) or (4) shall have jurisdiction in respect of acts of infrin-gement committed or threatened within the territory of any of theMember States.
2. A Community design court whose jurisdiction is based on Article
82(5) shall have jurisdiction only in respect of acts of infringementcommitted or threatened within the territory of the Member State in
which that court is situated.
Article 84
Action or counterclaim for a declaration of invalidity of a Commu-
nity design
1. An action or a counterclaim for a declaration of invalidity of a
Community design may only be based on the grounds for invalidity
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 the person entitled under
those provisions.
3. If the counterclaim is brought in a legal action to which the right
holder of the Community design is not already a party, he shall beinformed thereof and may be joined as a party to the action in accor-dance with the conditions set out in the law of the Member State wherethe 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. In proceedings in respect of an infringement action or an action
for threatened infringement of a registered Community design, theCommunity design court shall treat the Community design as valid.Validity may be challenged only with a counterclaim for a declarationof invalidity. However, a plea relating to the invalidity of a Communitydesign, submitted otherwise than by way of counterclaim, shall be
admissible in so far as the defendant claims that the Community design
could be declared invalid on account of an earlier national design right,within the meaning of Article 25(1)(d), belonging to him.
2. In proceedings in respect of an infringement action or an action
for threatened infringement of an unregistered Community design, theCommunity design court shall treat the Community design as valid ifthe right holder produces proof that the conditions laid down in Article
11 have been met and indicates what constitutes the individual char-
acter of his Community design. However, the defendant may contestits validity by way of a plea or with a counterclaim for a declarationof invalidity.
Article 86
Judgements of invalidity
1. Where in a proceeding before a Community design court the
Community design has been put in issue by way of a counterclaim for
a declaration of invalidity:
(a) if any of the grounds mentioned in Article 25 are found to preju-
dice the maintenance of the Community design, the court shalldeclare the Community design invalid;
(b) if none of the grounds mentioned in Article 25 is found to preju-
dice the maintenance of the Community design, the court shallreject the counterclaim.2002R0006 — EN — 01.05.2004 — 001.001 — 31
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2. The Community design court with which a counterclaim for a
declaration of invalidity of a registered Community design has beenfiled shall inform the Office of the date on which the counterclaim
was filed. The latter shall record this fact in the register.
3. The Community design court hearing a counterclaim for a
declaration of invalidity of a registered Community design may, on
application by the right holder of the registered Community designand after hearing the other parties, stay the proceedings and requestthe defendant to submit an application for a declaration of invalidityto the Office within a time limit which the court shall determine. Ifthe application is not made within the time limit, the proceedings shall
continue; the counterclaim 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 of invalidity of a
registered Community design, a copy of the judgment shall be sent tothe Office. Any party may request information about such transmission.The Office shall mention the judgment in the register in accordancewith the provisions of the implementing regulation.
5. No counterclaim for a declaration of invalidity of a registered
Community design may be made if an application relating to the samesubject matter and cause of action, and involving the same parties, has
already been determined by the Office 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 design court
declaring a Community design invalid shall have in all the MemberStates the effects specified in Article 26.
Article 88
Applicable law
1. The Community design courts shall apply the provisions of this
Regulation.
2. On all matters not covered by this Regulation, a Community
design court shall apply its national law, including its private interna-
tional law.
3. Unless otherwise provided in this Regulation, a Community
design court shall apply the rules of procedure governing the sametype of action relating to a national design right in the Member Statewhere it is situated.
Article 89
Sanctions in actions for infringement
1. Where in an action for infringement or for threatened infringe-
ment a Community design court finds that the defendant has infringedor threatened to infringe a Community design, it shall, unless there arespecial reasons for not doing so, order the following measures:
(a) an order prohibiting the defendant from proceeding with the acts
which have infringed or would infringe the Community design;
(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 or if such effect would have
been obvious in the circumstances;
(d) any order imposing other sanctions appropriate under the circum-
stances which are provided by the law of the Member State inwhich the acts of infringement or threatened infringement arecommitted, including its private international law.2002R0006 — EN — 01.05.2004 — 001.001 — 32
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2. The Community design court shall take such measures in accor-
dance with its national law as are aimed at ensuring that the ordersreferred to in paragraph 1 are complied with.
Article 90
Provisional measures, including protective measures
1. Application may be made to the courts of a Member State,
including Community design courts, for such provisional measures,including protective measures, in respect of a Community design as
may be available under the law of that State in respect of national
design rights even if, under this Regulation, a Community design courtof another Member State has jurisdiction as to the substance of thematter.
2. In proceedings relating to provisional measures, including protec-
tive measures, a plea otherwise than by way of counterclaim relating tothe invalidity of a Community design submitted by the defendant shallbe admissible. Article 85(2) shall, however, apply mutatis mutandis .
3. A Community design court whose jurisdiction is based on Article
82(1), (2), (3) or (4) shall have jurisdiction to grant provisionalmeasures, including protective measures, which, subject to any neces-sary procedure for recognition and enforcement pursuant to Title III
of the Convention on Jurisdiction and Enforcement, are applicable in
the territory of any Member State. No other court shall have such juris-diction.
Article 91
Specific rules on related actions
1. A Community design court hearing an action referred to in
Article 81, other than an action for a declaration of non-infringement,
shall, unless there are special grounds for continuing the hearing, of itsown motion after hearing the parties, or at the request of one of theparties and after hearing the other parties, stay the proceedings wherethe validity of the Community design is already in issue before another
Community design court on account of a counterclaim or, in the case
of a registered Community design, where an application for a declara-tion of invalidity has already been filed at the Office.
2. The Office, when hearing an application for a declaration of inva-
lidity of a registered Community design, shall, unless there are special
grounds for continuing the hearing, of its own motion after hearing theparties, or at the request of one of the parties and after hearing theother parties, stay the proceedings where the validity of the registeredCommunity design is already in issue on account of a counterclaim
before a Community design court. However, if one of the parties to
the proceedings before the Community design court so requests, thecourt may, after hearing the other parties to these proceedings, staythe proceedings. The Office shall in this instance continue the proceed-ings pending before it.
3. Where the Community design court stays the proceedings it may
order provisional measures, including protective measures, for the dura-tion of the stay.
Article 92
Jurisdiction of Community design courts of second instance —
further appeal
1. An appeal to the Community design courts of second instance
shall lie from judgments of the Community design courts of firstinstance in respect of proceedings arising from the actions and claimsreferred to in Article 81.
2. The conditions under which an appeal may be lodged with a
Community design court of second instance shall be determined bythe national law of the Member State in which that court is located.2002R0006 — EN — 01.05.2004 — 001.001 — 33
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3. The national rules concerning further appeal shall be applicable in
respect of judgments of Community design courts of 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 jurisdiction under
Article 79(1) or (4), those courts shall have jurisdiction for actions
relating to Community designs other than those referred to in Article
81 which would have jurisdiction ratione loci and ratione materiae in
the case of actions relating to a national design right in that State.
2. Actions relating to a Community design, other than those referred
to in Article 81, for which no court has jurisdiction pursuant to Article79(1) and (4) and paragraph 1 of this Article may be heard before thecourts of the Member State in which the Office has its seat.
Article 94
Obligation of the national court
A national court which is dealing with an action relating to a Commu-
nity design other than the actions referred to in Article 81 shall treat
the design as valid. Articles 85(2) and 90(2) shall, however, apply
mutatis mutandis .
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 between the same parties arebrought before the courts of different Member States, one seized onthe basis of a Community design and the other seized on the basis ofa national design right providing simultaneous protection, the court
other than the court first seized shall of its own motion decline jurisdic-
tion in favour of that court. The court which would be required todecline jurisdiction may stay its proceedings if the jurisdiction of theother court is contested.
2. The Community design court hearing an action for infringement
or threatened infringement on the basis of a Community design shallreject the action if a final judgment on the merits has been given onthe same cause of action and between the same parties on the basis of
a design right providing simultaneous protection.
3. The court hearing an action for infringement or for threatened
infringement on the basis of a national design right shall reject the
action if a final judgment on the merits has been given on the samecause of action and between the same parties on the basis of a Commu-nity design providing simultaneous 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 prejudice to
any provisions of Community law or of the law of the Member Statesconcerned relating to unregistered designs, trade marks or other distinc-2002R0006 — EN — 01.05.2004 — 001.001 — 34
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tive 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 Member States as from thedate on which the design was created or fixed in any form. The extent
to which, and the conditions under which, such a protection is
conferred, including the level of originality required, shall be deter-mined by each Member State.
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 Regulation on
the Community trade mark shall apply to the Office with regard to itstasks under this Regulation.
Article 98
Language of proceedings
1. The application for a registered Community design shall be filed
in one of the official languages of the Community.
2. The applicant must indicate a second language which shall be a
language of the Office the use of which he accepts as a possible
language of proceedings before the Office.
If the application was filed in a language which is not one of the
languages of the Office, the Office shall arrange to have the application
translated into the language indicated by the applicant.
3. Where the applicant for a registered Community design is the
sole party to proceedings before the Office, the language of proceed-ings shall be the language used for filing the application. If theapplication was made in a language other then the languages of theOffice, the Office may send written communications to the applicantin the second language indicated by the applicant in his application.
4. In the case of invalidity proceedings, the language of proceedings
shall be the language used for filing the application for a registered
Community design if this is one of the languages of the Office. If the
application was made in a language other than the languages of theOffice, the language of proceedings shall be the second language indi-cated in the application.
The application for a declaration of invalidity shall be filed in the
language of proceedings.
Where the language of proceedings is not the language used for filing
the application for a registered Community design, the right holder ofthe Community design may file observations in the language of filing.The Office shall arrange to have those observations 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 a derogation granted by
the Office where justified by the complexity of the case, exceed anamount to be fixed for each category of proceedings on the basis ofthe average size of statements of case received by the Office. Expendi-ture in excess of this amount may be allocated to the losing party inaccordance with Article 70.2002R0006 — EN — 01.05.2004 — 001.001 — 35
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5. Parties to invalidity proceedings may agree that a different offi-
cial language of the Community is to be the language of theproceedings.
Article 99
Publication and register
1. All information the publication of which is prescribed by this
Regulation or the implementing regulation shall be published 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. In cases of doubt, the text in the language of the Office in which
the application for a registered Community design was filed shall beauthentic. If the application was filed in an official language of theCommunity other than one of the languages of the Office, the text inthe second language indicated by the applicant shall be authentic.
Article 100
Supplementary powers of the President
In addition to the functions and powers conferred on the President of
the Office by Article 119 of the Regulation on the Community trade
mark, the President may place before the Commission any proposal to
amend this Regulation, the implementing regulation, the fees regulationand any other rule to the extent that they apply to registered Commu-nity designs, after consulting the Administrative Board and, in the caseof the 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 other provisions of thisRegulation, 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 examina-
tion as to formal requirements, examination as to grounds forrefusal of registration and invalidity proceedings in the Office andin the other cases provided for in this Regulation.
Section 2
Procedures
Article 102
Competence
For taking decisions in connection with the procedures laid down in
this Regulation the following shall be competent:
(a) examiners;
(b) the Administration of Trade Marks and Designs and Legal Divi-
sion;
(c) Invalidity Divisions;
(d) Boards of Appeal.
Article 103
Examiners
An examiner shall be responsible for taking decisions on behalf of the
Office in relation to an application for a registered Community design.2002R0006 — EN — 01.05.2004 — 001.001 — 36
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Article 104
The Administration of Trade Marks and Designs and Legal Divi-
sion
1. The Administration of Trade Marks and Legal Division provided
for by Article 128 of the Regulation on the Community trade mark
shall become the Administration of Trade Marks and Designs and
Legal Division.
2. In addition to the powers conferred upon it by the Regulation on
the Community trade mark, it shall be responsible for taking those
decisions required by this Regulation which do not fall within thecompetence of an examiner or an Invalidity Division. It shall in parti-cular be responsible for decisions in respect of entries in the register.
Article 105
Invalidity Divisions
1. An Invalidity Division shall be responsible for taking decisions in
relation to applications for declarations of invalidity 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 of the Regu-
lation on the Community trade mark, the Boards of Appeal institutedby that Regulation shall be responsible for deciding on appeals fromdecisions of the examiners, the Invalidity Divisions and from the deci-sions of the Administration of Trade Marks and Designs and Legal
Division as regards their decisions concerning Community designs.
TITLE XII
FINAL PROVISIONS
Article 107
Implementing regulation
1. The rules implementing this Regulation shall be adopted in an
implementing regulation.
2. In addition to the fees already provided for in this Regulation,
fees shall be charged, in accordance with the detailed rules of applica-tion laid down in the implementing regulation and in a 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;2002R0006 — EN — 01.05.2004 — 001.001 — 37
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(n) issue of certified copies of the application.
3. The implementing regulation and the fees regulation shall be
adopted and amended in accordance with the procedure laid down inArticle 109(2).
Article 108
Rules of procedure of the Boards of Appeal
The rules of procedure of the Boards of Appeal shall apply to appeals
heard by those Boards under this Regulation, without prejudice to any
necessary adjustment or additional provision, adopted in accordance
with the procedure laid down in Article 109(2).
Article 109
Committee
1. The Commission shall be assisted by a Committee.2. Where reference is made to this paragraph, Articles 5 and 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 into force
on a proposal from the Commission on this subject, protection as a
Community design shall not exist for a design which constitutes acomponent part of a complex product used within the meaning ofArticle 19(1) for the purpose of the repair of that complex product soas to restore its original appearance.
2. The proposal from the Commission referred to in paragraph 1
shall be submitted together with, and take into consideration, anychanges which the Commission shall propose on the same subject
pursuant to Article 18 of Directive 98/71/EC.
Article 110a
Provisions relating to the enlargement of the Community
1. As from the date of accession of the Czech Republic, Estonia,
Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia andSlovakia (hereinafter referred to as ‘new Member State(s)’), a Commu-nity design protected or applied for pursuant to this Regulation beforethe date of accession shall be extended to the territory of those MemberStates in order to have equal effect throughout the Community.
2. The application for a registered Community design may not be
refused on the basis of any of the grounds for non-registrability listed
in Article 47(1), if these grounds became applicable merely because of
the accession of a new Member State.
3. A Community design as referred to in paragraph 1 may not be
declared invalid pursuant to Article 25(1) if the grounds for invalidity
became applicable merely because of the accession of a new MemberState.
4. The applicant or the holder of an earlier right in a new Member
State may oppose the use of a Community design falling under Article25(1)(d), (e) or (f) within the territory where the earlier right isprotected. For the purpose of this provision, ‘earlier right’ means aright acquired or applied for in good faith before accession.
5. Paragraphs 1, 3 and 4 above shall also apply to unregistered
Community designs. Pursuant to Article 11, a design which has not2002R0006 — EN — 01.05.2004 — 001.001 — 38
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been made public within the territory of the Community shall not enjoy
protection as an unregistered Community design.
Article 111
Entry into force
1. This Regulation shall enter into force on the 60th day following
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 Administrative Board on therecommendation of the President of the Office.
3. Applications for registered Community designs filed within three
months before the date referred to in paragraph 2 shall be deemed tohave been filed on that date.
This Regulation shall be binding in its entirety and directly applicable
in all Member States.2002R0006 — EN — 01.05.2004 — 001.001 — 39
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