CELEX: 51993PC0342
Language: en
Date: 1993-12-03
Title: Proposal for a EUROPEAN PARLIAMENT AND COUNCIL REGULATION on the Community Design

COMMISSION OF THE EUROPEAN COMVTUNITIES
                                      C0M(93) 342 final-COD 463
                                      Brussels, 3  December 1993
                          Proposal for a
      EUROPEAN PARLIAMENT AND COUNCIL REGULATION
                   on the Community Design
                 (presented by the Commission)
 ---pagebreak---                                  TABLE OF CONTENTS
                                                                             Page
EXPLANATORY MEMORANDUM                                                          1
PROPOSAL FOR A EUROPEAN PARLIAMENT AND COUNCIL REGULATION                      50
TITLE L     GENERAL PROVISIONS
Article 1   Community Design                                                   54
                                                                               55
Article 2   Community Design Office
TTTLE a     THE LAW RELATING TO DESIGNS
Section 1 :  Requirements for protection
                                                                               55
Article 3   Definitions                                                        55
Article 4   General requirements                                               55
Article 5   Novelty                                                            56
Article 6   Individual character                                               56
Article 7   Date of reference                                                  56
Article 8   Non-prejudicial disclosures                                        57
Article 9   Non-arbitrary technical designs, and designs of interconnections   57
Article 10  Designs contrary to public policy
Section 2:  Scope and term of protection
Article 11  Scope of protection                                                57
Article 12  Commencement and term of protection of the
            Unregistered Community Design                                      57
Article 13  Commencement and term of protection of the Registered
            Community Design                                                   58
Section 3:  Entitlement to the Community Design
Article 14  Right to the Community Design                                      58
Article 15  Plurality of designers                                             58
Article 16  Claims relating to the entitlement of a
            Community Design                                                   58
Article 17  Effects of a judgment on entitlement to a Registered
            Community Design                                                   59
Article 18  Presumption in favour of the registered person                     59
Article 19  Specific rights of the designer                                    59
Section 4:  Effects of the Community Design
Article 20  Rights conferred by the Unregistered Community Design              59
Article 21  Rights conferred by the Registered Community Design                60
Article 22  Limitation of the rights conferred by a Community Design           60
Article 23  Use of a Registered Community Design for repair purposes           60
Article 24  Exhaustion                                                         61
Article 25  Rights of prior use in respect of a Registered Community Design    61
 ---pagebreak--- Section 5: Invalidity
Article 26 Declaration of invalidity                                   61
Article 27 Grounds for invalidity                                      61
Article 28 Effects of invalidity                                       62
TITLE m.   COMMUNITY DESIGNS AS OBJECTS OF PROPERTY
Article 29 Dealing with Community Designs as national design rights    62
Article 30 Transfer                                                    63
Article 31 Rights in rem on a Registered Community Design              63
Article 32 Levy of execution on a Registered Community Design          64
Article 33 Bankruptcy or like proceedings                              64
Article 34 Licensing                                                   64
Article 35 Effects vis-a-vis third parties                             65
Article 36 The application for a Registered Community Design
           as an object of property                                    65
TTTLE IV.  THE APPUCATION FOR A REGISTERED COMMUNriY DESIGN
Section 1: Filing of applications and the conditions which govern them
Article 37 Filing of applications                                      66
Article 38 Forwarding of the application                               66
Article 39 Conditions with which applications must comply              66
Article 40 Multiple applications                                       67
Article 41 Date of filing                                              68
Article 42 Classification                                              68
Section 2: Priority
Article 43 Right of priority                                           68
Article 44 Claiming priority                                           69
Article 45 Effect of priority right                                    69
Article 46 Equivalence of Community filing with national filing        69
Article 47 Exhibition priority                                         69
TTTLE V.   REGISTRATION PROCEDURE
Article 48 Examination as to formal requirements                       70
Article 49 Remediable deficiencies                                     70
Article 50 Registration                                                70
Article 51 Publication                                                 71
Article 52 Deferment of the publication                                71
TTTLE VL   TERM OF PROTECTION OF THE REGISTERED
           COMMUNITY DESIGN
Article 53 Term of protection                                          72
Article 54 Renewal                                                     72
                                            ii
 ---pagebreak--- TTTLE V a  SURRENDER AND INVALIDITY OF THE REGISTERED
           COMMUNITY DESIGN
Article 55 Surrender                                                          73
Article 56 Application for a declaration of invalidity                        73
Article 57 Examination of the application                                     73
Article 58 Participation in the proceedings of the alleged infringer,
           the Commission and the Member States                               74
TITLE VHI. APPEALS FROM DECISIONS OF THE OFFICE
Article 59 Decisions subject to appeal                                        74
Article 60 Persons entitled to appeal and to be parties to appeal proceedings 74
Article 61 Time limit and form of appeal                                      75
Article 62 Interlocutory revision                                             75
Article 63 Examination of appeals                                             75
Article 64 Decisions in respect of appeals                                    75
Article 65 Actions before die Court of Justice                                76
TTTLE K.    PROCEDURE BEFORE THE OFFICE
Section 1: General provisions
Article 66 Statement of reasons on which decisions are based                  76
Article 67 Examination of the facts by the Office of its own motion           76
Article 68 Oral proceedings                                                   77
Article 69 Taking of evidence                                                 77
Article 70  Notification                                                      77
Article 71 Restitutio in integrum                                             78
Article 72 Reference to general principles                                    79
Article 73 Termination of financial obligations                               79
Section 2: Costs
Article 74 Allocation of costs                                                79
Article 75 Enforcement of decisions fixing the amount of costs                80
Section 3: Information of the public and of the official authorities
           of the Member States
Article 76 Register                                                           80
Article 77 Periodical publications                                            81
Article 78 Inspection of files                                                81
Article 79 Administrative and legal cooperation                               81
Article 80 Exchange of publications                                           82
Section 4: Representation
Article 81 General principles of representation                               82
Article 82 Professional representatives                                       82
                                            m
 ---pagebreak--- TTTLE X.     JURISDICTION AND PROCEDURE IN LEGAL ACTIONS
            RELATING TO COMMUNITY DESIGNS
Section 1 :  Jurisdiction and Enforcement
Article 83  Application of the Convention on Jurisdiction and Enforcement              83
Section 2:  Disputes concerning the infringement and validity of Community Designs
Article 84  Community Design Courts                                                    84
Article 85  Jurisdiction over infringement and validity                                85
Article 86  International jurisdiction                                                 85
Article 87  Extent of jurisdiction on infringement                                     85
Article 88  Action or counterclaim for a declaration of invalidity of
            a Community Design                                                         86
Article 89  Presumption of validity - defence as to the merits                         86
Article 90  Judgments on validity                                                      87
Article 91  Effects of the judgment on validity                                        87
Article 92  Applicable law                                                             88
Article 93  Sanctions in actions for infringement                                      88
Article 94  Provisional measures, including protective measures                        88
Article 95  Specific rules on related actions                                          89
Article 96  Jurisdiction of Community Design Courts of second instance -
            further appeal                                                             89
Section 3;  Other disputes concerning Community Designs
Article 97  Supplementary provisions on the jurisdiction of national courts other than
            Community Design Courts                                                    90
Article 98  Obligation of the national court                                           90
TTTLE X t    EFFECTS ON THE LAWS OF THE MEMBER STATES
Article 99  Parallel actions on the basis of Community Designs and
            national design rights                                                     90
Article 100 Relationship to other forms of protection under national law               91
TTTLE Xtt    THE COMMUNITY DESIGN OFFICE
Section 1:  General provisions                          ,
Article 101 Legal status                                                               91
Article 102 Administrative services                                                    92
Article 103 Staff                                                                      92
Article 104 Privileges and immunities                                                  92
Article 105 Liability                                                                  92
Article 106 Jurisdiction of the Court of Justice                                       93
Section 2:  Management of the Office
Article 107 Powers of the President                                                    93
Article 108 Appointment of senior officials                                            93
                                              IV
 ---pagebreak--- Section 3:  Administrative Board
Article 109 Creation and powers                                  94
Article 110 Composition                                          94
Article 111 Chairmanship                                         94
Article 112 Meetings                                             95
Section 4:  Implementation of procedures
Article 113 Competence                                           95
Article 114 Formalities Examining Division                       95
Article 115 Design Administration and Legal Division             96
Article 116 Invalidity Divisions                                 96
Article 117 Boards of Appeal                                     96
Article 118 Independence of the members of the Boards of Appeal  96
Article 119 Exclusion and objection                              97
Article 120 Appointment of members of Invalidity Divisions
            and Boards of Appeal during a transitional period    97
Section 5   Financial provisions
Article 121 Budget                                               98
Article 122 Fees                                                 99
TTTLE XIR FINAL PROVISIONS
Article 123 Official languages                                   99
Article 124 Community implementing provisions                    99
Article 125 System of exchange of information                    99
Article 126 Establishment of a committee and procedure for
            the adoption of implementing regulations             99
Article 127 Fees Regulation                                     100
Article 128 Entry into force                                    100
 ---pagebreak---                               EXPLANATORY MEMORANDUM
                                     PART ONE: GENERAL
1.  Introduction
1.1 The present Regulation aims to provide for a Community system for the legal protection of
    industrial design.
1.2 Legal protection of designs at the present time comes into existence by way of registration.
    Apartfromthe Benelux where a regional design protection system has been in force since
     1975 design protection is national. The protection is granted upon application on a State-by-
    State basis. The legal effect of the protection is limited to the territory of the State in which
    the protection has been granted
1.3 Conflicts leading to barriers to the free flow of goods are inevitable. A design, which in one
    Member State may qualify for protection, may in another Member State not fulfil the
    requirements for protection. If goods lawfully produced by a competitor in the country where
    no design protection exists are sought to be commercialized in the country where design
    protection is in force the entry into that State can be prohibited by virtue of the provision
    of Article 36 EEC. Likewise, due to the strictly national character of a design protection the
    same design can in different Member States be registered by differentrightholders. A right
    holder in one country can by virtue of the provisions of Article 36 EEC prevent the
    importation into that State of goods that would infringe his rights even if the design
    embodied in the goods in another Member State is registered by anotherrightholder.
1.4 Designrightshave in the past decade become increasingly important since design has gained
    in importance as a marketing tool. Many goods are sought after by consumers not only on
    the grounds of their function but also or even more so because of their design. The kind of
    goods in which designs are embodied cannot easily be enumerated. An extremely wide range
    of goods are design "goods",fromartefacts and jewellery to sophisticated machinery, tools,
    electronics and consumer electronics, motor vehicles, yachts, furniture and office equipment,
    sport articles, fashion and clothing and domestic appliances, to mention just a few examples
    of the areas of typical contemporary industrial design activity. Artificial barriers to trade will
    therefore have repercussions on the trade in most manufactured goods and are therefore
    incompatible with the functioning of an internal market.
1.5 To allow goods embodying designs to flow freely within an internal market a protection
    system at the level of die Community is necessary. A Community-wide protection system
    cannot be replaced by the approximation of the laws of the Member States. Even national
    protection systems of a uniform character would not satisfy the needs of the internal market
    since the protection would end at thefrontiersof the State in which protection had been
    acquired. Thus, in spite of approximation of laws theriskthat conflicting rights could exist
    in other Member States would still be real.
 ---pagebreak--- 1.6 Action to provide for a Community system for design protection can only take place at the
    level of the Community and cannot in any respect be replaced by action taken by Member
    States within their territories. A supranational protection system can be provided for only
    by way of supranational action. The legal instrument foreseen for achieving this is a
    Regulation.
1.7 Therefore the Regulation is in conformity with the principle of subsidiarity. The Community
    must legislate because the legislation in question is necessary to achieve the aims of the
    internal market and the legislation necessary for this aim cannot be adopted at the level of
    the Member States but only at the level of the Community.
2.  The legal basis
2.1 The proposed Regulation pursues in respect of industrial designs and the goods embodying
    industrial designs objectives similar to those which other Community initiatives in the area
    of intellectual and industrial property law pursue, namely the establishment and functioning
    of a common market in design products and hence their free movement, undistorted
    competition in design products and the due protection of this form of industrial and
    commercial property. (Article 2, Article 3(a), and (f), and Article 36 of the EEC Treaty).
2.2 Article 8a of the EEC Treaty provides mat die Community shall adopt measures, in
    accordance with the provisions of the Treaty, i.e. Article 100a, with the aim of establishing
    the internal market which comprises an area without internal frontiers in which is ensured
    free movement of goods such as design products.
    Article 100a EEC empowers the Community, in order to achieve the objectives of the
    internal market, to adopt the necessary approximation "measures". Measures is a term for
    every type of legal instrument. Therefore to "adopt measures" means to enact all appropriate
    legal provisions. For die purposes of Article 100a, appropriate provisions are provisions
    which pursue the objectives set out in Article 8a and which therefore have as their object
    the establishment and functioning of the internal market. The choice of instrument depends
    on how suitable and necessary it is for the attainment of the objective.
2.3 The objective pursued by the measure is the creation of a Community-wide right coming
    into existence and expiring at the same time for the whole area of the Community and
    conferring upon itsrightholder a unitaryright.This objective cannot be achieved by way
    of a Directive. By means of a Directive approximation of the laws of the Member States can
    be achieved thereby providing for legislation protecting designs on the same conditions, for
    a uniform period of time and with the same scope of protection and contents of protection
    in all Community Member States. But a Directive cannot replace the different national
    protection systems with their exclusively territorial application, imposing on users the burden
    of multiple registrations, of the payment of different fees in different Member States and
    monitoring of rights in different Member States by a single right valid throughout die
     Community. For this purpose a Regulation is necessary. It follows from what has been stated
    in the introduction that die present situation where design protection is national and limited
 ---pagebreak---     to the jurisdiction within which it has been granted creates barriers to interstate trade. Unless
    a Community-wide right is introduced, the reliance upon Article 36 as a legitimate defence
    for maintaining restrictions on the importation of goods will be perpetuated and the action
    suggested is therefore necessary to achieve the objectives as regards the internal market.
2.4 Harmonization within the meaning of Article 100a is not restricted to amending national
    law, but covers also supplementing national provisions or the replacement of national
    provisions. The creation of a Community design supplements national provisions on the
    protection of design, and can therefore be considered as an "approximation" of the law of
    the Member States in this area within the meaning of Article 100a EEC.
2.5 The Office to be set up according to Article 2 of die Regulation should, for reasons of
    economy, have administrative structures in common with the Community Trade Mark Office
    created within theframeworkof the Community Trade Mark Regulation Jo be adopted prior
    to final adoption of the present Regulation.
3.  The importance of design protection for the Community
3.1 Adequate design protection adapted to the economy is of paramount importance to the
    Community, its Member States and its enterprises, in particular small and medium-sized
    enterprises.
3.2 With the increased standard of living, consumers are becoming increasingly demanding as
    regards the quality of designs and have thereby set in motion a development having the
    effect that design is becoming an extremely important marketing tool. In many sectors of
    industry, enterprises compete primarily on designs. The economic activity within some
    sectors of industry would come to a standstill if enterprises were not in a position to
    stimulate the demand for their products by way of new designs. In many cases, it is the
    design, which decides die commercial success or failure of operations and with the
    realization of the internal market this development is likely to be reinforced. Enterprises
    succeeding in attracting consumers by way of designs will, by exploiting the commercial
    conditions of a single market, frequently be in a position to increase their market share in
    respect of their products in comparison to their competitors. In the Community economic
    landscape many monuments can be found which testify to the commercial success of design
    enterprises. These enterprises are represented and their products more and more often found
    in a large number of commercial centres of the Community.
3.3 Superior design is one of the main assets of Community-based industries in their competition
     with industries from third countries, which often have lower labour costs. Many design
     products originating in the Community enjoy an enviable reputation in the market place. To
     safeguard the basis of this reputation, to enhance even further the value of these design
     activities, and to promote investment in designs by protecting them against parasitic
     behaviour is one of the objectives of the Regulation.
 ---pagebreak--- 3.4 Designs are often easily reproduced. In many cases no know-how is required for the
    reproduction of design products. Therefore, design counterfeiting is widespread in the
    Community as well as outside the Community and legislation offering at least a degree of
    protection against the misappropriations of designs requested by economic operators.
3.5 The Community design protection system will set an example at the international level and
    will make it easier for the Community to exercise its influence for the purpose of achieving
    equitable design protection outside the jurisdiction of the Community.
4.  Design protection in Member States
4.1 All Member States except Greece have introduced legislation on the legal protection of
    designs by way of specific protection. The protection under specific design protection law
    is often used in cumulation with protection under copyright law. The conditions for the
    application of copyright law and the extent to which this legal instrument is used vary from
    one Member State to another. In some Member States copyright is widely applied. This has
    the effect of reducing the reliance upon specific design protection by a number of industrial
    sectors. Even in those countries the more functional designs are, however, more often than
    not sought to be protected under the umbrella of specific design protection law. Other legal
    instruments such as trademark law and unfair competition law may also come into play
    under die conditions applicable within the different areas of industrial and intellectual
    property law.
4.2 Eleven Member States have in common a system according to which designs are protected
    upon registration. Recently the UK has also introduced a protection for unregistered designs
    with effect from 1 January 1989. Earlier designs benefit exclusively from the legislation in
    force prior to the entry into force of the new legislation subject to some limitations on
    copyright protection for existing designs for which transitional arrangements have been
    made. The effect of the UK unregistered design right on the behaviour of operators in the
    market place cannot yet be assessed.
4.3 The age of the present design protection laws of Member States differs significantly. Some
    are of recent date as, for example, the UK legislation. Other laws are very old indeed. The
    French law on models and designs dates, for example, from 1909 and has only been the
    subject of technical amendments in 1991. The date of the enactment of die laws presently
    in force is immaterial, however, from the point of view of the users of the system. The
    origin of design protection laws is the period of industrialization. During this period the first
    design protection laws were enacted, clearly inspired by principles of patent law. In spite
    of later amendments or new legislative initiatives, the characteristics of early patent and
    design protection law have been maintained. Thus, national legislation has been incapable
    of fully adjusting to the industrial and economic development to the detriment of users of
    the system. It is precisely this heritage from the early industrialized society which many
    industrial sectors today regret.
4.4 The link to early patent law is expressed primarily by the requirements for protection, which
    in many cases is a novelty concept which is not quite compatible with the characteristics of
     designs, in some cases an examination prior to registration unduly stressing the importance
 ---pagebreak---      of prior registrations within a given geographical area and a design concept which favours
     the ornamentation of products without sufficiently considering the characteristics of
     contemporary industrial design: the merger of form and function.'
4.5 The Regulation aims at providing a fully modem design protection system adapted to the
     reality of design activities and to the need of die users of the system.
5.   The need for action
5.1 In parallel with the development of the Community and the completion of the internal
     market, industrial propertyrights,which come into existence upon registration within a given
    jurisdiction, need to be replaced or gradually superseded by Community-widerights.Only
     by introduction of Community-wide rights can the repercussions of national effect of
     industrial property protection be overcome. For patents, the Community is endeavouring to
     set the Agreement of 15 December 1989 relating to Community Patents0? into force as early
     as possible. For trademarks, an adoption of die proposal for a Regulation on the Community
     trademark appears to be within reach. The present proposal adds another piece to the jig-saw
     puzzle which industrial property rights constitute.
5.2 If industry is to be allowed to benefit from the advantages of an internal market, national
     rights must gradually be superseded by Community-wide rights. In particular, small and
     medium-sized enterprises and individual designers are not equipped to secure and monitor
     protection of their investment in design in twelve different Member States. Even for
     enterprises being in a position to use the different national design protection systems, it is
     a most cumbersome and costly affair. The result is that operators frequently limit
     registrations to what at the moment are their most important markets with a realriskof later
     repercussions as to their commercial prospects in other countries and with very considerable
     negative effects on the free flow of goods.
5.3 Therefore, the need for action now has been emphasized by the overwhelming majority of
     industrial sectors.
6.   The effects of the Regulation at international level
6.1 At the international level, design protection suffers from the lack of international
      conventions providing for a certain degree of harmonization by way of provisions on
      minimum rights.
      Article 5 of the Paris Convention for the Protection of Industrial Property sets out that
      "Industrial designs shall be protected in all the countries of die Union" but contains no
     provisions on substantive rights. The Berne Convention on the protection of Literary and
      Artistic Works leaves the States adhering to the Berne Union die choice of protecting
      industrial "works of applied art and industrial designs" either by way of copyright law or
      by way of specific legislation (or both). Due to the lack of binding provisions in
(i)
    89/695/EEC, OJ No L 401, 30.12.1989, p. 1.
                                                 5
 ---pagebreak---     international conventions, design protection laws are far more different from each other than,
    for example, copyright laws and patent laws. Securing rights and the monitoring of rights
    in third countries is therefore not easy for EEC-based industries and is for small and
    medium-sized enterprises a nearly impossible task.
6.2 The Hague Agreement concerning the International Deposit of Industrial Designs has as its
    objective to make it easier for users to apply for design protection in a number of countries
    by providing for a centralized international deposit system. By way of one application filed
    with WIPO it is possible to obtain a protection in one or more or all the States adhering to
    the Agreement. It needs to be emphasized, however, that the protection is strictly national
    and subject to the conditions laid down in the laws of the countries designated in the
    application. The individual countries designated in the application may refuse protection if
    requirements for protection of national law are not fulfilled. This international registration
    system could nevertheless be of great value to EEC-based industries even after entry into
    force of the Community design protection system if it were not for the fact that apart from
    seven Community Member States (the Benelux countries, France, Germany, Italy and Spain)
    most industrialized countries do not adhere to the Agreement at the present time. Twenty
    States participate in the Arrangement but apart from Switzerland, no major industrialized
    State and in particular not the countries which constitute the most important export markets
    of the Community. A revision of the Agreement is at die present time being discussed
    within WIPO aiming at inter alia facilitating the participation in the Agreement of more
    States and in particular the US and Japan.
6.3 When the Community design protection system enters into force it may become necessary
    to provide for a link between the Community Design and die (revised) Hague Agreement.
    Such a link permitting nationals and enterprises to acquire a Community Design through a
    registration via the Hague system and permitting Community enterprises to acquire
    international registration by way of registration with the Community. A model for such a
    link can be found in the Protocol relating to the Madrid Agreement concerning the
    international registration of marks establishing a link between the Community trademark and
    the Madrid Agreement.
6.4 What has been said in paragraph 4.3 on the disadvantages which follow from the fact that
    design protection laws have been inspired by principles of patent protection law is, however,
    tenfold valid for some of the countries constituting the Community's most important trading
    partners some of which directly apply provisions of patent law on designs called "design
    patents". The contents of legislation in countries outside the Community becomes of concern
    to the Community if Community enterprises could be disadvantaged by virtue of legislation
    which, without in any way having a discriminatory character, fails to provide facilities for
    easy protection of the characteristics of the output of Community enterprises.
6.5 By providing the appropriate legislation within the Community's own jurisdiction, the
    Community greatly enhances its possibility to influence the development in the rest of the
    world.
6.6 The provisions of the Regulation are fully consistent with the provisions on Industrial
    Designs in the draft TRIPs Agreement at present under negotiation.
 ---pagebreak--- 7.   Preparation and consultation
7.1 The Regulation is based on comprehensive preparatory work and thorough consultation with
     interested circles. In June 1991 Commission services published a consultative document:
     Green Paper on the legal protection of industrial design (III/F/5131/91).
7.2 Following the publication of the Green Paper, Commission services received written
     submissions from an important number of industry organizations and from practitioners in
     industrial property rights and from designers. In a number of cases industrial organizations
     created cross industry working parties with a view to discussing the initial ideas set out in
     the Green Paper and to submit comments and suggestions to the Commission. Such
     comments made on behalf of extremely important organizations representing a cross section
     of industries in all Community Member States deserve, of course, much attention.
7.3 The collection of submissions was supplemented by way of a hearing with a large body of
     interested parties, consumers' organizations, international organizations and representatives
     of Member States as observers on 25 and 26 February 1992. Detailed minutes of the hearing
     have been submitted by Commission services (III/F/5252/92) in July 1992. Government
     industrial property experts of Member States were consulted in their personal capacity during
     a hearing of 25 March 1992. Finally, a hearing on the most controversial issue, die legal
     protection of designs relating to car parts, was organized on 16 October 1992. In this hearing
     only the most interested parties were invited to participate.
7.4 The contents of the present Regulation takes into consideration the many observations made.
8.   The basic features of the Community design protection system
8.1 The Community design protection system is a two-tier system introducing, on the one hand,
     protection based on registration and, on the other hand, an automatic protection coming into
     existence by making die design available to the public.
8.2 Designs are features of appearance which can be perceived by the human senses. No
      aesthetic criteria are applied. Aesthetic and functional designs are equally protectable.
      However, features necessary to achieve a technical function and which leave no freedom as
      regards arbitrary elements are unprotectable in order not to monopolize technical functions
      by way of design protection. Such features may be protectable under patent law or utility
      model law provided the requirements for such protection are fulfilled.
      To allow for the interoperability of products, designs of interconnections, even if arbitrary,
      are not eligible for protection except as regards interconnections of modular products.
 8.3 The basic requirements for protection are that the design is novel and has an individual
      character, which means that the design in the eyes of an informed user is different from
      other designs found in the market place.
 ---pagebreak--- 8.4 The Unregistered Community Design confers upon the right holder protection against
    reproduction whereas the Registered Community Design confers upon the right holder a
    genuine exclusive right as regards the use of the design.
8.5 The duration of the protection is three years for the Unregistered Community Design and
    five years for the Registered Community design renewable for a maximum period of twenty
    five years.
8.6 It is important for designers and enterprises to be able to test a design in the market without
    thereby - as foreseen in many design protection laws in force - jeopardizing the novel
    character of the design. Therefore, the Regulation sets out that disclosures within a given
    time period by the designer himself or his successor in title do not prejudice the novel
    character of his design.
8.7 In accordance with the views of die interested circles, the registration system is not based
    on substantive examination as to the fulfilment of requirements for protection prior to
    registration. This aspect should contribute to rapid and uncostly registration.
8.8   Upon registration designs are published. Some industries need, however, to be given the
      possibility to keep designs secret for a period. Other industries, in particular textiles
      producing a large number of designs with short intervals, need to be given the possibility
      of reducing costs by way of deferment of publication.
8.9   The Regulation introduces multiple registration for cost-saving purposes. By one and the
      same application an indefinite number of interrelated designs can be registered.
8.10 By letting die Design Office share administrative structures with the Trade Mark Office
      operational costs can be reduced. Further, it appears advisable to take over provisions
      relating to the judicial system, administrative procedures and financial regulation from die
      trademark Regulation unless specific features of designs as opposed to trademarks require
      different solutions.
9.    Design protection and competition
9.1   Intellectual and industrial property rights confer upon the right holder exclusive rights.
      Given the objectives of intellectual and industrial property rights as regards investment in
      innovation and creativity, this aspect of intellectual and industrial property does not
      normally give rise to misgivings from a competition policy point of view provided that the
      rights are exercised in an equitable manner and provided mat competition in the market
      place is not stultified by the creation of monopolies in generic products.
9.2   The Regulation is fully in conformity with these guidelines. Design protection does not
      monopolize given products, but protects the individual appearance given to a product by
      its designer. Protection of the design of a watch does not hamper competition in the watch
      market.
 ---pagebreak--- 9.3  In very rare cases a design protection sweeping in scope as the Community Design may
     have secondary unwanted side effects as regards exclusion or limitation of competition in
     the market place. This is true in particular for costly, long lasting complex products such
     as motor vehicles, where design protection of the design relating to the individual parte of
     which the complex product is composed could create a truly captive market in spare parts.
9.4  For these products a repair clause has been introduced permitting the reproduction of
      designs for the purpose of producing spare parts three years after thefirstmarketing of the
     product to which the design has been applied. Thus, the manufacturer is allowed an
      exclusive right during a three year period without indefinitely tying the consumer to a
     single manufacturer.
9.5  In any event, Articles 85 and 86 of the EEC Treaty remain applicable. Although, as follows
      from the case law of the Court of Justice(2), the mere exercise by the proprietor of a
     protected design of its exclusiverightsdoes not in itself constitute an abuse of a dominant
     position, this exercise may constitute such an abuse - and therefore be prohibited by
      Article 86 EEC - if it involves on the part of the undertaking holding a dominant position
      certain abusive conduct, such as the arbitrary refusal to supply spare parts to independent
     repairers, the fixing of prices at an unfair level or a decision no longer to produce spare
     parts for a particular product even though it is still in circulation, provided that such
      conduct is liable to affect trade between Member States.
(2)
    Case 53/87, Circa v Renault. [1988] ECR, 6039.
    Case 238/87, Volvo v Veng. [1988] ECR, 6211.
 ---pagebreak---                           PART TWO: PARTICULAR PROVISIONS
                                             TTTLEI
                                   GENERAL PROVISIONS
                                             Article 1
Paragraphs (1) and (2)
The provision introduces the term "Community Design" for registered designs and unregistered
designs.
Paragraph (3)
The provision sets out the basic principle: the unitary character of the Community Design.
                                             Article 2
The introduction of die Community Design makes the creation of a Community Design Office
necessary for the purpose of the registration of designs.
                                             TITLEII
                             THE LAW RELATING TO DESIGNS
                                             Section 1
                                   Requirements for protection
                                             Article 3
The provision contains two important definitions: "design" and "product".
"Design" means any feature of appearance which can be perceived by the human senses as
regards sight and tactility are features of design. It is irrelevant whether the design is of an
aesthetic character or functional and whether it is decisive for the end user's choice of product.
Some specific elements of which a design may consist have been enumerated. The enumeration
is not exhaustive. Weight and flexibility, for example, may in some cases be design features. It
goes without saying mat a colour in itself or a material as such are not eligible for protection.
But the choice of a colour in combination with other design elements or die combination of
colours in a graphic design can add to the individual character of the design and may as such
constitute a protectable element when applied to a specific product. A material or a texture can
likewise be the expression of a highly original idea and be a decisive element in perceiving the
presence of a protectable design.
                                                 10
 ---pagebreak--- "Product" means any item to which a design can be applied. The list of items mentioned is by
way of example only. It appears to be useful, however, to mention explicitly a number of
products such as, for example, typographic typefaces, which in some jurisdictions are not
considered "products" for the purpose of design protection.
Designs of parts of products can also be protected. The protection could therefore be sought for
a specific element of a product, all the other elements of the appearance being admittedly
commonplace. Components or elements intended to be assembled in a larger complex product
can each be protected as a product provided they can be marketed separately and their designs
comply with the requirements for protection.
Computer programs and semi-conductor products are not considered "products" for the purpose
of the application of the design Regulation.
As far as computer programs are concerned, the exclusion may appear to be superfluous since
computer programs as defined in the Directive on the legal protection of computer programs(3)
cannot be designed. It may be useful, however, to state explicitly that the copyright protection
provided under the umbrella of the aforementioned Directive cannot be supplemented or
reinforced by a protection of die "look and feel" of a computer program by way of design
protection. This does not exclude the protection of specific graphic designs as applied, for
example, to icons or menus provided the normal requirements for protection are met.
As regards semi-conductor products, the exclusion is not self evident. The design of the
topography of semi-conductor products would probably, if not explicitly excluded, be eligible for
protection under the terms of the Regulation. It has been considered necessary, however, to
exclude semi-conductor products from protection in order not to tilt the balance created by the
recently adopted Directive on the legal protection of topographies of semi-conductor products(4).
                                            Article 4
Paragraph (1)
This Article sets out the requirements for protection.
The requirements are twofold: that the design is new and that it has an individual character.
Paragraph (2)
As far as designs applied to products which are parts of a complex product are concerned, the
design of each individual part must fulfil the requirements as regards being new and having its
own individual character. It can otherwise not attract protection. When a new car model is
marketed design protection is often taken out for the car as such and for a number of parts, in
particular body parts. The requirement implies that the novelty and individual character of, for
example, a car wing must be assessed on the basis of its own merits. It cannot derive individual
(3)
    Council Directive 91/250/EEC, OJ No L 122, 17.5.1991, p. 42.
(4)
    Council Directive 87/54/EEC, OJ No L 24, 27.1.1987, p. 36.
                                                11
 ---pagebreak--- character by virtue of the individual character of die whole car. The principle expressed by the
provision has gained general recognition and corresponds to Article 2(2) of the Directive on the
legal protection of topographies of semi-conductor products.
                                             Article 5
This provision defines the notion of novelty.
Paragraph (1)
In accordance with the opinion expressed by a majority of industries, the basic requirement for
protection is that the design is new. This is an objective criterion. It is immaterial to establish
whether the design is die result of an independent creation by the designer or has been copied.
Novelty is to be assessed at the world-wide level. If it has been registered or otherwise been
made available to the public anywhere in the world, it is not new. It is, however, only identical
or near to identical anticipations, which destroy the novelty, whereas "overall impression of
similarity" is not enough to have this effect. Non-identical anticipations, however, may need to
be considered for the purpose of assessing the individual character of the design.
Paragraph (2)
The notion "made available to the public" is defined. Any disclosure that does not take place on
the condition of confidentiality has the effect that the design is to be considered made available
to the public.
                                             Article 6
Paragraph (1)
This provision defines the second requirement for protection, namely the individual character. A
design has an individual character in so far as it produces an impression of overall dissimilarity
compared to previously existing designs. It is immaterial whether it can be established that the
second design differs from an earlier design in even an important number of details if the overall
impression is one of similarity ("déjà vu"). The person on whom an overall impression of
dissimilarity must be made is an "informed user". This may be, but is not necessarily, the end
consumer who may be totally unaware of the appearance of the product, for example if it is an
internal part of a machine or a mechanical device replaced in the course of a repair. In such cases
the "informed user" is the person replacing the part. A certain level of knowledge or design
awareness is presupposed depending on the character of the design. But the term "informed user"
should indicate also that the similarity is not to be assessed at die level of "design experts".
The provision introduces a high threshold of dissimilarity in comparison to previously existing
designs, thereby at the same time providing for a broad scope of protection (Article 11). If a
design was not subjected to this test, it would imply that alterations of a previously existing
design would qualify for protection as a new design since the novelty criterion of Article 5 only
precludes identical designs. In a number of jurisdictions the search for anticipations has, in fact,
been limited to the identical or nearly identical designs thereby reducing the scope of protection
to nil. European industries need, however, a protection which goes beyond die protection against
identical reproductions and which is far more sweeping in scope. The counterpart of such an
efficient protection is, however, a high threshold as regards individual character.
                                                 12
 ---pagebreak--- As regards the possibility of maintaining and enforcing the high threshold, see Articles 56 and 58.
As a result, fewer designs will be protectable under the Community Design than under the laws
of some Member States. Most industries have, however, during consultation, stressed that the
requirement appears to be reasonable and in conformity with the true interests of Community
industries.
Paragraph (2)
If the individual character were to be assessed in comparison with all prior designs, the threshold
might become unduly difficult to pass. Further, it would appear to be objectionable if an alleged
infringer during infringement procedures were to be allowed to challenge the validity of the
design he allegedly has copied by quoting a possible previous design, which has long ago
disappearedfromthe market and can be found only in a remote museum. Such a risk of abusive
search for anticipations has in fact been quoted by industry as an argument against die objective
novelty requirement. Thisriskof abuse needs to be countered. It is also claimed that die revival
of ancient designs in many cases can be meritorious and deserve protection. Therefore, the
provision defines and limits those prior designs in respect of which the individual character of
a Community Design must be assessed. Designs applied to products, which can no longer be
found on die market - whether inside or outside the Community - shall not be taken into
consideration. This implies that a design, the protection of which has expired prevents a third
party from acquiring an exclusive right as regards a similar design as long as the product in
respect of which it is applied is still on the market. It is, however, necessary to consider also
Registered Community Designs and national registered designs, which have been published and
which have not yet expired, irrespective of whether die product to which the design is applied
is marketed or not. A limitation to products effectively marketed would be incompatible with the
obligations of Member States under the Paris Convention for the Protection of Industrial Property.
Paragraph (3)
The provision intends to give guidance to the courts when deciding whether a design has the
necessary individual character. Common features shall be given more weight man differences,
because what counts is the overall impression. Further, the freedom of the designer must be
considered when assessing the individual character (see also Article 11(2)).
                                               Article 7
Paragraph (a)                                                  '
The point in time when die criteria must be fulfilled is "the date of reference". This date is
different for Registered Community Designs and for Unregistered Community Designs. For
Unregistered Community Designs the date is the day on which the Unregistered Design comes
into existence, which is the day it is made available to the public. Article 12 defines how this
date is established.
Paragraph (b)
For Registered Community Designs the day of reference is the day of thefilingof the application
for registration or, if a priority is claimed, the day of priority.
                                                   13
 ---pagebreak---                                               Article 8
Paragraph (1)
The provision defines those disclosures which do not have the effect of destroying the novelty
and the individual character of a Registered Community Design.
The provision states that where protection is claimed under a Registered Community Design,
disclosures which have taken place within twelve months prior to the date of reference (date of
the filing of the application or a possibly earlier date of priority) is without consequence for the
novelty and the individual character of the Registered Community Design provided that the
disclosure has taken place by the designer himself or his successor in title or where the disclosure
is the result of an abuse in relation to the designer or his successor in tide.
This implies,firstly,that the designer can use the design and test it on the market during twelve
months without risk of destroying the novelty and individual character of his design. The
provision has the effect of a "grace period" while avoiding use of the term, as this could lead to
confusion with the different patent concept of a grace period.
Secondly, the provision expresses the principle that all other disclosurestitanthe ones described
have the effect of destroying die novelty of a later design even if the prior design is unknown
to and could not have been known to die designer of the later design. A design disclosed, for
example, in Sicily and marketed only locally has, in theory, the effect of preventing a designer
in Ireland from getting protection for an identical design even where die later design has been
developed without inspiration from the prior design. In practice, however, the effects are likely
to be less dramatic. An earlier Unregistered Community Design does not guarantee that a later
independentiy developed design is not Registered in good faith and remains valid because it is
unchallenged. Further, even in cases where the right holder in respect of the earlier design
becomes aware of the later Community Design he may well invalidate the exclusive right by
action before the Office (Article 56) or by Legal Action before a Community Design Court
(Article 85 (c) or (d)), but he cannot prevent the later designer or his successor in tide from
commercialising the product to which die design is applied, since the Unregistered Design confers
upon therightholder a protection against reproduction only (Article 20). For these reasons the
provision appears not to entail rough justice in practice.
Paragraph (2)
If an abusively disclosed design within the meaning of Article 8(1) has led to a Registered
Community Design or to a registered designrightof a Member State, the abusive nature of the
disclosure can no longer be invoked, as the principle of legal certainty has to prevail. The person
legitimately entitied to the design may, however, apply the procedure foreseen under Article 16
and ask for a transfer of the registeredrighttaken out as a consequence of the abusive disclosure.
                                              Article 9
Paragraph (1)
No distinction is made in the Regulation between aesthetic and functional designs; they are
equally able to attract protection. In extremely rare cases, the form follows the function without
any possibility of variation. In such cases, the designer cannot claim that the result is due to
personal creativity. The design has, in fact, no individual character and cannot attract protection.
                                                  14
 ---pagebreak--- It is unlikely, however, that the whole design will be unprotectable. In most cases, only specific
features will, without possibilities of variations, be dictated by function. Therefore, the provision
provides for unprotectability to the extent only that there is no freedom as regards arbitrary
elements of design.
Paragraph (2)
This provision sets out that the design of interconnections which must necessarily be reproduced
in their exact forms and dimensions are not eligible for protection even where the design of the
interconnecting element is arbitrary in the sense that shape and dimension is not exclusively
dictated by the technical function. The purpose of this provision is to enhance the interoperability
of products of different make and to prevent manufacturers of design products from creating
captive markets, for example for peripherals, by monopolizing the shape and dimensions of
interconnections.
Thus, for example, the dimensions of thefittingsof an exhaust pipe, dictated by the necessity of
fitting the exhaust pipe to a specific car model cannot constitute a protectable design element
since the dimensions are dictated by those of die underside of the car.
Paragraph (3)
An exception from die provision in paragraph 2 needs to be made for the interconnections of
modular products provided, of course, that the interconnections comply with die requirements for
protection, in particular die requirement as to individual character (Article 6). Thus, for example,
fittings which permit a chair of a specific make to be fitted in rows to other chairs of the same
make or permit the chairs to be stacked or die interconnecting elements of toys designed with a
view to being assembled would, in principle, be eligible for protection. Otherwise, it would be
possible for competitors to make a short cut to a special market where the innovative character
of the design in question often consists in - albeit not exclusively - the design of interconnecting
elements permitting indefinite interconnection within a given system.
                                               Article 10
A similar provision concerning public policy and accepted principles of morality can be found
in many national design protection laws and in the Benelux uniform law.
                                               Section 2
                                    Scope and term of protection
                                               Article 11
Paragraph (1)
The Article defines the scope of protection. It lays down two main principles. First, when
assessing whether a second design infringes a previous design the overall impression of similarity
is decisive and not whether differences as regards details or specific aspects can be established.
Reference is made to an "informed user". The notion "informed user" is explained in the
comments to Article 6. The overall impression created on an "informed user" may differ from
                                                   15
 ---pagebreak--- the overall impression created on an ordinary consumer, in the sense that the "informed user"
may find striking differences, which would totally escape the attention of an ordinary consumer.
Much depends on the character of the design.
Paragraph (2)
Paragraph (2) is intended to give guidance to the courts in infringement cases. What counts is
not the unimportant variations, which a competitor has added to a reproduced design ("intelligent
copy") but die common features.
Highly functional designs where die desijmer must respect given parameters are likely to be more
similar than designs in respect of which die designer enjoys total freedom. Therefore, paragraph 2
also establishes the principle that the freedom of the designer must be taken into consideration
when the similarity between an earlier and a later design is being assessed.
                                             Article 12
The Article sets out the term of protection for the Unregistered Community Design. The
protection comes into existence upon making the design available to the public. The onus of
proof as regards the date on which the design was made available to the public is on the design
owner. It may be advisable, in cases where the date could be challenged, to keep records on the
disclosure of the design. The commercial practices vary from one industry to another and no
general rule can be indicated as to what must be considered necessary to establish the date of
making the design available to the public.
                                             Article 13
This Article sets out the term of protection for the Registered Community Design. The term of
protection is five years renewable for four further periods each of five years computed from die
day of application. If the design has enjoyed protection as an Unregistered Community Design
for which a registration application has been made at the end of the period of twelve months
described in Article 8(1), the maximum protection period for a Community Design can thus be
26 years.
                                             Section 3
                              Entitlement to the Community Design
                                             Article 14
Paragraph (1)
The provision establishes the important principle that the design right belongs originally to the
designer. Nothing prevents, however, the designer from assigning from the outset his right to
 another person, the "successor intitle",usually the manufacturer of the products embodying the
design. As the Community Design only confers economicrights,but no moralrights,the transfer
of therightfromthe designer to the successor in tide is total, except for therightestablished by
 Article 19 to be mentioned as designer before the Office in case of a Registered
 Community Design.
                                                 16
 ---pagebreak--- Paragraph (2)
Where the design is created by an employed designer in the execution of his duties under the
work contract, the right belongs to the employer unless otherwise provided by contract. In the
corresponding provision in the Directive on the legal protection of computer programs(5) the right
of the employer is limited to the exercise of the economicrights.The difference stems from the
fact that the protection provided for by die aforementioned Directive is copyright protection,
which according to the laws of some Member States grants the author a protection which cannot
be assigned in its entirety. No similar restrictions exists as regards the assignment of design
rights. Consequently, the same solution has been foreseen as in Article 3(2)(a) of the Directive
on the legal protection of topographies of semi-conductor products(6). Within theframeworkof
die aforementioned Directive the solution indicated is optional only. Within the framework of the
present Regulation it has, however, been considered necessary to provide for a uniform solution.
                                             Article 15
When a design has been developed by two or more designers joindy, dierightin the design shall
belong to them jointly. If it has not been laid down in contract how therightis exercised, it will
need to be exercised joindy.
This last rule has not been expressed explicitly in the Regulation.
For the case where a design has been developed by two designers independently of each other,
see comments to Article 8(1).
                                             Article 16
Paragraph (1)
It may occur that a registration is taken out by a person not entitled, for example, if an employed
designer takes out a registration for a design in respect of which the employer following die
provisions of Article 14(2) is the legitimate right holder. In such a case the right holder may
claim a transfer of die registration ("Vindication" action). A similar provision can be found in
Article 23 of the Agreement relating to Community Patents of 15 December 1989(7).
Paragraph (2)
Where a registration fails to mention that therightbelongs to several designers joindy, each of
therightholders can claim correction in accordance with paragraph (1).
Paragraph (3)
Except for cases where the registration has been taken out in bad faith, it appears necessary to
make the access to correction subject to a limitation intime.The limitation has been fixed at two
years from publication.
(5)
    Council Directive 91/250/EEC, OJ No L 122, 17.5.1991, p. 42.
(6)
    Council Directive 87/54/EEC, OJ No L 24, 27.1.1987, p. 36.
°> 89/695/EEC, OJ No L 401, 30.12.1989, p. 1.
                                                  17
 ---pagebreak--- Paragraph (4)
The fact that legal proceedings regarding correction have been initiated is subject to mentioning
in the register. The same applies to a decision on entitlement or any other termination of the legal
proceedings.
                                              Article 17
Paragraph (1)
This provision sets out the effects of a judicial decision recognizing the transfer of a Community
Design to the legitimate right holder as a consequence of the action referred to in Article 16.
Also this provision is closely modelled on the provision of Article 24 of the Community Patent
Convention(8). The effect is that licences and otherrightsgranted by a non-entitled person lapse,
when it has been established that they have been granted by a non-entitled person.
Paragraph (2)
In cases where serious and effective preparations have been made to exploit the licence or
another right commercially, the effect of a lapse may be disastrous. To mitigate the effect, it is
foreseen that a licence inspired by the "right of prior use" (Article 25) can be granted if
requested.
Paragraph (3)
In case the licensee or the holder of anotherrighthas acted in bad faith when exploitation began,
all rights are forfeited.
                                              Article 18
This provision gives the Office the right to presume that the person in whose name the
application is filed is the person entitled to die design right. This provision, which follows the
similar provision of Article 60(3) of the European Patent Convention, aims at avoiding that, in
a procedure before the Office, the question of the entitlement could be raised, bearing in mind
that the Office has no jurisdiction to adjudicate on such questions, which belong to the
jurisdiction of the national courts.
If the question of entitlement should be raised during the registration procedure, the Office would
have to pursue the procedure with the original applicant. The person who pretends to be the
legitimate right holder could then claim the transfer of the right under the action mentioned in
Article 16. If the question is raised during an invalidity action, the Office could, if it considers
 appropriate, stay the proceedings and invite the person pretending to be the legitimaterightholder
to have the matter ascertained before a national court.
                                              Article 19
This provision grants the designer a right of paternity to the design as regards the procedures
before the Office and the Community Design Register (see also Article 14(1)).
(8)
     89/695/EEC, OJ No L 401, 30.12.1989, p. 1.
                                                  18
 ---pagebreak--- In a number of cases designs are created by design departments of an industry or by teams of
designers and it may be very cumbersome, if not sometimes impossible, to indicate the names
of all the participants in the development of a design. In such cases it is sufficient to indicate,
for example, that the design has been developed by die design department of the enterprise in
question. Detailed provisions aiming at ensuring that the right of paternity of die designer is
safeguarded under these circumstances are going to be developed in the Implementing Regulation.
It has not been considered feasible to require that the name of the designer (or of the team) be
mentioned in other contexts, for instance on the product itself or on the packaging or in the
literature accompanying the product.
                                             Section 4
                                Effects of the Community Design
                                            Article 20
Therightconferred by the Unregistered Community Design is a protection against reproduction
only and is not a monopoly right Therefore, the wording is different from Article 21(1) dealing
with the rights conferred by die Registered Community Design in the sense that no exclusive
rights as regards the use of their design is conferred. In case of unauthorized copying, die right
holder can proceed against secondary infringers, such as importers or dealers to prevent the
commercial dealing in counterfeit products.
                                             Article 21
Paragraph (1)
Therightconferred by the Registered Community Design is a monopoly right. Therightholder
has an exclusive right as regards the use of the design and he can enforce his right against any
similar design even in cases where the infringing design has been developed in good faith.
Paragraph (2)
If, however, a Registered Community Design has not been published because the right holder has
 made use of the possibility of adjourning the publication, the Community Design confers upon
die right holder protection against reproduction only. Upon publication, the full exclusive right
is conferred. It goes without saying that this effect is not retroactive.
 A party who has independently developed a design falling within the scope of protection of the
Registered and now published Community Design is thus not affected by die exclusive right.
                                                 19
 ---pagebreak---                                             Article 22
The provision contains a number of limitations of therightsconferred by a Community Design.
Paragraph (1)
Subparagraphs (a) and (b) correspond to the provision in Article 27 of the Agreement of
15 December 1989 relating to the Community Patent(9). Subparagraph (c) contains a provision on
fair use as regards educational use or quotations, the essential element being that the use does
not prejudice the normal exploitation of the design. The source has to be recognized.
Paragraph (2)
Subparagraphs (a) to (c) introduce the same exceptions for design as can be found for patents in
Article 5(3) of the Paris Convention on the Protection of Industrial Property.
                                            Article 23
The purpose of this provision is to avoid the creation of captive markets in certain spare parts.
By virtue of die provision in Article 9(2), the design of mechanical interconnections cannot
constitute subject matter which can attract design protection. This means, in practice, that all
dimensions of parts of a complex product may be reproduced. Moreover, any part of such a
product may be considered immaterial to the user if, for example, the replacement part cannot
be seen. This will often be the case for internal parts of machinery, a car engine and the like.
If, however, the part in question is external and is meant to be seen, and if, further, in the eyes
of the end consumer, it ideally should match die overall appearance of the complex product, then
access to reproduction of dimensions and other mechanical interconnection elements would be
insufficient in themselves to allow for competition in the parts in question. The consumer, having
bought a long lasting and perhaps expensive product (for example a car) would, for external
parts, indefinitely be tied to the manufacturer of the complex product. This could eventually
create unhealthy conditions in die market place as regards competition in parts, but also, in
practice, could provide the manufacturer of die complex product with a monopoly lasting longer
than die protection of his design. If, for example, competitors were only allowed to enter the
market after the design protection had expired, it is reasonable to believe that no enterprise would
find it worthwhile to enter the market at that time. If competition is to be provided for, access
to the market must be open at a time when the investment in production realistically can be
considered.
The provision makes an inroad into the rights of the right holder and it should therefore be
applicable only under strict conditions.
First, a period of three yearsfromthefirstmarketing of die product is foreseen during which the
right holder in the design has an exclusive right.
(9)
     89/695/EEC, OJ No L 401, 30.12.1989, p. 1.
                                                 20
 ---pagebreak--- Secondly, the design in question must be applied to a product, which is a part of a complex
product upon whose appearance it is dependent. The condition is fulfilled, for example, by the
design of a car door, which is conceived to match the other doors of the car and die whole car
body, but not necessarily all other parts serving an ornamental purpose.
Further, the purpose of the reproduction must be to allow repair in the sense of restoring the
original appearance of the complex product. This condition may be difficult to enforce in
practice. However, the fact that reproduction only can take place as from three years from the
first marketing makes it unlikely that an independent producer of parts could enter die market of
subcontractors delivering parts to the first assembling and marketing of the complex product.
The purpose of the provision is to provide for fair competition in the market place. It is therefore
a condition that an independent producer of parts makes it clear to the public that his product is
of a different origin than the corresponding original part of the complex products. There must be
no passing-off whereby the consumer may be misled. Understood in this way it is also clear that
the original manufacturer of the complex product carries no responsibility for the quality of the
replaced part in question.
                                             Article 24
This provision contains a codification of the case-law of the Court of Justice concerning die
exhaustion of the "industrial and commercial property rights" within the meaning of
Article 36 EEC. The provision, which is related to the putting on the market in die territory of
the Community, follows similar provisions contained in other Community acts, notably the
Community Patent Convention and the draft Regulation on the Community Trade Mark.
                                             Article 25
With the filing of an application for a Community Design, the design in question becomes the
object of an exclusive right. In rare cases a design falling within the scope of protection of the
right holder in respect of the Community Design may have been developed independently by
another party who, compared to therightholder in respect of the Registered Community Design
is, however, late in making the design available to the public or applying for a registration. As
a general rule, it is necessary to foresee that the right following from the Community Design
precludes all otherrights.In exceptional cases, however, the effect of dûs rule may appear to be
 unnecessarily harsh, namely where the second designer has made serious preparations (financial
or otherwise) to exploit the design in question. For these presumably rare cases, arightof prior
 use has, with inspiration from the field of patent law, been foreseen.
 The right of prior use is not necessary with respect to Unregistered Community Design as the
 independent developer of an identical design cannot be considered as an infringer (see
 Article 20).
                                                 21
 ---pagebreak---                                                Section 5
                                              Invalidity
                                              Article 26
Paragraph (1)
This provision establishes the principle that the invalidity of a Community Design may be only
declared by the specialized national courts called Community Design Courts (see Article 84). In
the case of a Registered Community Design, however, the jurisdiction of these courts is subject
to the condition that the action for invalidity has been raised as a counterclaim in an infringement
action (see Article 85(d)), whilst the direct action for invalidity has to be brought before the
specific department of the Office (see Article 56 ff).
Paragraph (2)
In some cases there could be an interest in obtaining a declaration of invalidity even after the
design has expired or has been surrendered, for example if the design right, prior to its expiry
or surrender, has been enforced against a party by a decision which has not yet become final.
                                              Article 27
This important provision contains the exhaustive list of the grounds on which a Community
Design can be declared invalid.
Paragraph (1)
The first and most obvious case is when the requirements for protection referred to in Article 4
are not fulfilled (paragraph (1 )(&))•
The second ground for invalidity mentioned under paragraph (l)(b) corresponds to the case where
the specific features of the design are not eligible for protection because they are entirely dictated
by a technical function leaving no freedom for arbitrary design or constitute interconnections
(Article 9(1) and (2)). It should be stressed that often this ground of invalidity will only lead to
partial invalidity. The provision is most likely to be used in infringement proceedings, where an
alleged infringer claims that the design feature he is accused of infringing constitutes an element
which is not eligible for protection.
The rules on jurisdiction and procedure including the competence of the Commission to intervene
(Articles 56 and 58) concerning the declaration of invalidity are also applicable to the case of
partial invalidity.
The third ground for invalidity mentioned under paragraph (l)(c) deals with the cases where a
design is contrary to public policy or accepted principles of morality. Although these cases will
probably prove to be extremely rare, they raise a difficult question: should the contradiction with
public policy or accepted principles of morality be assessed by using a "Community notion" or
by reference to a specific national sensitiveness which may vary profoundly from one country
to another. Notwithstanding the fact that both in the case of the Community Patent and of the
Community Trade Mark the first approach has been followed, it has been felt that this could be
                                                  22
 ---pagebreak--- dangerous dealing with design, as it would either imply that the interpretation of these notions
would have to take place at the lowest existing level within the'Community, or that an
autonomous interpretation would have to be eventually developed by the Court of Justice which
could raise political difficulties. For these reasons, it has been suggested that the invalidity will
be declared only in respect of the Member State or States where this ground of invalidity obtains,
thereby maintaining the validity of the Community Design in all other Member States
(paragraph (3)(a)).
A fourth ground for invalidity (paragraph (l)(d)) concerns the case where therightholder is not
the person legitimately entided, but has, for example, misappropriated the design right. This
ground may be operated only by the person legitimately entitled, who has therefore first to act
under Article 16 in order to obtain a decision by a court establishing hisrightto the design. This
provision aims at assisting the legitimaterightholder in those cases where he prefers to destroy,
with ex-tune effect, the misappropriated right rather than to continue the exploitation of the
exclusive designrightin his own name on the basis of the decision recognizing his entitlement.
Paragraph (2)
A special case of invalidity is dealt with under paragraph (2) and concerns the so-called "earlier
rights". This provision deals with the case of those applications for or registered design rights
which were already filed with an industrial property office, but not yet made available to the
public at the date on which, according to Article 7, the novelty and the individual character of
a later Registered Community Design has to be assessed. This is not a theoretical problem,
limited to the few months which might run between filing the application and publication of the
design right; it also concerns the cases where a registered design right is kept secret by die
relevant office under the applicable law. However, in the case of the Registered Community
Design in respect of which the publication has been adjourned according to Article 52, the
problem will occur only in case of reproduction (see Article 21(2)).
 Such anticipations ("earlierrights")are not covered by the provisions of Articles 5 and 6 and
cannot be opposed to a later design right, as they are not "disclosures" in a technical sense. It
would be, on the other hand, impossible to leave such earlierrightswithout any defence against
later registrations; not only would this be utterly unfair but it would also make completely
poindess the mechanism of adjournment of publication known to several national systems and -
 albeit with protection against reproduction only - also foreseen for the Registered Community
 Design.
 The solution which is suggested consists, therefore, in admitting that the right holders of such
 earlierrightscould invoke them as a ground of invalidity against the later Registered Community
 Design. The possibility of invoking such a ground would, however, be limited to therightholder
of the earlier right and the earlier right could not be invoked by a third alleged infringer.
 The favour that the later Registered Community Design deserves with respect to such earlier
 rights which were not available to the public when the application was first filed justifies a
 further limitation of this ground for invalidity in the case where the earlierrightsare design rights
                                                   23
 ---pagebreak--- of one or more Member States and have therefore a territorial validity more restricted than the
whole Community. In these cases, die invalidity will be declared only with respect to such State
or States, leaving intact the protection offered by the Registered Community Design over the rest
of the territory of die Community (paragraph (3)(b)).
                                              Article 28
This provision sets out the principle of the ex-tunc effect of invalidity. Two cases are set out in
paragraph (2), where such effect is mitigated: the case of a final court decision on infringement
which has been already enforced and a contractual obligation which has already been performed.
                                              TTTLE III
                    COMMUNTTY DESIGNS AS OBJECTS OF PROPERTY
                                            Articles 29-36
These Articles deal with the Community Design (and the application for a Registered Community
Design) as an object of property. The provisions have been closely modelled on the similar
provisions already adopted for the Community Patent and die Community Trade Mark. It would
seem therefore superfluous to comment on each of them in detail.
                                              TITLE IV
              THE APPLICATION FOR A REGISTERED COMMUNITY DESIGN
                                               Section 1
                   Filing of applications and the conditions which govern them
                                            Articles 37-38
These two Articles determine where the application for a Registered Community Design must be
filed.
The applicant may choose between filing directly at the Community Design Office or filing at
the central industrial property office of a Member State. This option is modelled on the one
offered by the Regulation relating to the Community Trade Mark.
Bearing in mind the geographical extension and the linguistic variety of the Community, the
possibility to file with a national office represents a facility for those applicants who prefer to
establish die first contact with a more familiar authority nearer to their domicile.
The proposal does not, however, oblige each Member State to put at the disposal of their
residents the possibility of filing at the national industrial property office but merely allows
residents to do this if die law of a Member State so permits. It seems likely that most of the
                                                  24
 ---pagebreak--- central offices, in particular their "design departments", will be willing to carry out this task.
Belgium, Luxembourg and the Netherlands could entrust this task to the Benelux Design Office
at The Hague.
After a running-in period the question of how well the suggested scheme is working will have
to be assessed; experience will show whether die applicants' preference goes for a centralized or
a decentralized filing. Article 38(3) requires from the Commission a report on the operation of
the system after ten years of experience accompanied, if necessary, by proposals for
improvement.
If the application is filed with a national office, that office is obliged to forward the application
to the Community Office within two weeks from the date of actual filing. The national office can
require the payment of a fee to cover the administrative cost of receiving and forwarding the
application.
The risk that the application might not reach the Community Office, however minimal, cannot
be disregarded (delay or loss of the file during the transfer or as a consequence of a mistake by
the national office). To minimize the consequences of such an event it has been foreseen that the
Community Office, as soon as an application forwarded by a national office is received, will
inform the applicant accordingly. The applicant will therefore be in a position to spot very soon
any possible delay or loss of the application if he does not receive from the Community Office
a notice of receipt of the application within a reasonable period from the date of filing with die
national office. A possible liability of the national office, if from the delay or the loss of the
application certain rights of the applicant are lost, would be governed by the national law
applicable in the specific case.
                                               Article 39
This Article sets out the conditions with which an application must comply.
An application is made up of a number of elements. Some of them must be present for die
application to be valid, others are permissive and depend on the circumstances of the case.
Paragraphs (1), (4)
The necessary elements are the following:
- the request for registration, which will in fact consist in a multilingual form put at the disposal
   of the applicants by the Community Office and by each national office (paragraph (l)(a));
- information identifying the applicant (paragraph (l)(b));
- a graphic or photographic representation of the design suitable for reproduction (the
    representation will be used for die publication of the design in the Community Design Bulletin,
    as it is quite likely that representations of Registered Community Designs will be stored by
    the Office on optical disks, the Implementing Regulation could establish technical standards
   to define what is suitable for reproduction) (paragraph (l)(c));
 - the mention of the name of the designer or the indication of the team of designers
    (paragraph (4) - see also Article 16).
                                                   25
 ---pagebreak--- Paragraph (3)
The permissive elements are the following:
- a description explaining the graphic or photographic representation (such texts may be helpful
   in order to identify the specific features of the appearance of the product which constitute the
   essence of the design and which might not show up very well in a picture or drawing)
   (paragraph (3)(a));
- an indication of the products in which the design is intended to be embodied and the
   classification of the products according to the Locarno Agreement (the indication and
   classification would only be for classification and search purposes, and they would have no
   impact on die scope of protection of die design right) (paragraph (3)(b) and (c));
- a specimen or sample of the product in which the design is embodied: the specimens or
   samples could concern two-dimensional (mainly textiles) as well as three-dimensional products.
   Specific rules will have to be issued in die Implementing Regulation concerning the standards
   and die maximum sizes such specimens can reach, bearing in mind mat they will have to be
   kept and classified by the Office (paragraph (3)(d));
- a request for adjournment of die publication of the design (paragraph (3)(e) - see Article 52).
Paragraph (2)
The representation of the design suitable for reproduction can be replaced by a specimen or a
sample of the design under the following circumstances:
- if the application is for a two-dimensional design; and
* if a request for adjournment of publication of the design is filed.
This provision is intended to meet a specific need of the textile industry, which could use the
instrument of the adjournment of publication in order to file a number of applications much
higher than the number of designs for which eventually it will need protection. It would be
unnecessarily harsh to require this industry to deposit costly photographic or graphic
representations for all their applications at this very early stage, whilst filing a specimen or a
sample would be easier and cheaper. At the expiry of the period of adjournment, however, for
those designs for which protection is going to be maintained, publication in the Design Bulletin
will have to take place and, for this purpose, the graphic or photographic representation will have
to be filed (see Article 52(4)(b)).
Paragraph (5)
Concerning die fees, it is proposed that the application be subject to the payment of two fees:
- a registration fee;
- a publication fee.
If adjournment of publication is required, the publication fee should be replaced at this stage by
 a lighter fee for adjournment of publication which should basically cover the cost of the
 publication of the mention of adjournment (see Article 52(3)).
 The amount of these and any other fees provided by the Regulation will be established in
 accordance with the procedure under Article 127 in a Fees Regulation.
                                                   26
 ---pagebreak---                                               Article 40
Paragraph (1)
The instrument of the "multiple application" is known in several national systems and in the
Hague Agreement concerning the international deposit of designs. The aim is to facilitate the
filing of applications for those sectors of industry which produce a large number of designs and
where the cost and the administrative burden of taking out single designrightsfor each of them
would be too high. The Community Design system, which should be a very modern one and
which should be capable of inter-operating with the Hague international deposit system, could
not avoid providing for such a possibility.
The provision allows for the combination in one multiple application of a number of Registered
Community Designs. No ceiling is set for such a number, contrary to what had been suggested
in the Green Paper. The condition is, however, that the products in which the designs are
intended to be embodied belong all to the same sub-class according to the Locarno Agreement
or to the same set or composition of items. These limitations seem necessary in order to avoid
the instrument being used as a way of paying cheaper registration and publication fees by
presenting together designs intended for all sort of products. A multiple application must be
characterized by a unitary element, which is normally found in the fact that the products all
belong to the same sub-class. (The classes under die Locarno Agreement are too broad to comply
with this need of unity within a single application). The reference to a sub-class could, however,
in certain cases lead to unfair results: a same design could be applied to products which, because
of their physical nature, belong to different sub-classes or even classes. One could think of an
ornamentation which a manufacturer intends to apply on a set of different household
articles (china, glasses, forks, spoons and knifes, kitchen furniture, etc.). It would seem
appropriate to allow such a manufacturer to file a multiple application for all these different uses
of the design. The provision intends also to cover the various possibilities of "interior decoration"
resulting from a unitary design idea: this should be covered by the reference to "the same
composition of items".
Paragraph (2)
The treatment of a multiple application from the point of view of fees is inspired by the
suggestions WIPO has presented for the current revision of the Hague Agreement. Further to the
payment of the basic registration and publication fee, the applicant has to pay an additional
registration and publication fee which should correspond to a percentage of die basic fees for
each additional design. By using such a formula, it is possible to avoid the introduction of a
ceiling in the number of designs combined in a multiple application. The amount and a possible
variation of such a percentage according to the number of designs will have to be decided in
accordance with the fee policy followed by the authority which will adopt die Fees Regulation
(see Article 127).
                                                  27
 ---pagebreak---                                              Article 41
This provision defines the date of filing an application (including a multiple application) for a
Registered Community Design as being the date on which documents containing the information
which must be necessarily present in an application (see Article 39(1) and (2)) are filed either
at the Office or at a national central industrial property office (including die Benelux Office).
How this date is accorded results from Articles 48 and 49.
                                             Article 42
This provision sets out the general obligation for the purpose of the Regulation to follow the
classification provided by the Locarno Agreement of 1968. It should be emphasized again that
the use of such a classification, which is based on products, has no impact on the scope of
protection of a Community Design.
                                             Section 2
                                              Priority
                                          Articles 43-47
These Articles deal with the question of die right of priority. Designs enjoy, according to the
Paris Convention on die protection of Industrial Property, arightof priority of six months. The
Registered Community Design, which resultsfroma regional agreement among the EEC Member
States which are all parties to the Paris Convention, must therefore benefit from the possibility
that a priority is invoked resultingfroma prior application for the same design in or for any State
party to die Paris Convention.
The possibility of invoking die priority of a Community application for the purpose of obtaining
protection in or for a State party to die Paris Convention will have to be negotiated later on
within WIPO and will resultfromthe recognition of the Registered Community Design as a valid
protection instrument under the Paris Convention. Article 46 already establishes this principle
with regard to the EEC Member States, as an application for a Registered Community Design
which has been accorded a date of filing is said to be equivalent to a regular national filing in
each Member State.
Articles 43 to 47 have been modelled on the almost identical provisions contained in the
Community Patent Convention and the Draft Regulation on the Community Trade Mark. It would
therefore seem hardly necessary to comment on diem in detail.
                                                 28
 ---pagebreak---                                               TTTLE V
                                 REGISTRATION PROCEDURE
                                              Article 48
As has been stressed in the introductory part above, the registration procedure before the Office
must be simple, cheap and rapid. No substantial examination of the compliance of a design with
the requirements of protection, nor opposition procedures, are foreseen prior to registration. The
Office has only to carry out an examination as to formal requirements, leaving the control of die
intrinsic validity of a design to inter partes proceedings before the national courts or the Office
after the registration.
Paragraph (1)
This general principle means that the Office will not consider whether an application complies
with the requirements for protection, nor whether it raises problems like the possible technical
non-arbitrary nature of the features for which protection is sought and which is excluded under
Article 9. Nor will it consider non-compliance of the design with requirements of public policy
or of accepted principles of morality under Article 10.
Although the Office will not look into the substantial requirements for protection, it should not
be required to register a formally correct application for something which is obviously not
covered by the definition of design. Should a designrightbe requested for a musical theme (not
the graphic representation of a couple of bars) or for a name or a slogan (not their graphic
representation), die Office must be empowered to refuse die application from the outset. Against
such a decision the applicant will be in a position to appeal in accordance with Article 59 ff.
Paragraph (2)
This provision indicates the elements that the examination as to formal requirements by the
Office will take into consideration. It mustfirstof all be established that the application contains
the necessary elements which permit a date of filing to be accorded (elements mentioned in
Article 39(1) and (2)). Secondly, the Office has to check the compliance with all the other
conditions laid down in Article 39 (mention of the designer or of the team of designers, optional
elements, payment of die fees, compliance with the presentation requirements laid down in the
Implementing Regulation) and, in the case of a multiple application, with the conditions laid
down in Article 40 (optional elements, payment of the additional fees, compliance with the
presentation requirements laid down in the Implementing Regulation). Finally, the Office will
have to check die requirements concerning any claim to priority resulting from Article 44.
                                              Article 49
This Article indicates the consequences of there being some formal deficiencies in the
application. In this case the Office requests the applicant to remedy the deficiencies within a
given time limit.
If the deficiencies are remedied in duetime,the Office accords a date of filing, but such date will
be fixed differently according to the gravity of the deficiencies ascertained. If the deficiencies
concerned the existence of a request for registration, the information identifying the applicant,
                                                  29
 ---pagebreak--- the representation of the design or, where admissible, the alternative deposit of a specimen or a
sample, the date of filing will be the date on which such deficiencies have been remedied. If the
deficiencies concern other conditions which the application (or the multiple application) has to
meet, the date of filing will remain the date on which the application was presented to the Office
or the national office.
If the deficiencies are not remedied in due time, including payment of the fees which are due,
the application will be refused. The applicant will have a right of appeal against such a decision
by the Office (Article 59 ff).
As to the requirements concerning therightof priority, failure to correct the deficiencies will only
result in the loss of therightof priority for the application, which will continue to be processed,
but which will be then subject to assessment of compliance with the substantive requirements at
the date of filing and not at the earlier date of priority.
                                              Article 50
As soon as an application has been accorded a date of filing, it shall be registered as a Registered
Community Design. The date to be mentioned in the Register will be the date of filing. Bearing
in mind the simplicity of the examination as to formal requirements and the short time limits
which have been foreseen for forwarding the application from a national office to the Office or
for remedying existing deficiencies, the date of registration should in principle lie within the six
months following the date of actual filing.
                                              Article 51
The registration will be followed as soon as possible by the publication of die Registered
Community Design in the Community Design Bulletin. The interval between die registration and
the publication will depend, on the one hand, on the time needed for the technical preparation
of the publication and, on the other hand, on the frequency of issue by the Office of the Bulletin
(e.g. monthly or fortnighdy). The provision indicates what must be contained in the publication,
leaving to die Implementing Regulation the possibility of prescribing further details.
The provision is based on the idea that the Community Design Bulletin will be issued in the form
of a traditional printed magazine, as is now the case in the national system of several Member
States and in the Hague international deposit system; it might, however, appear more useful in
future, in the light of technological innovation, to allow the Office to choose a more efficient and
contemporary way of "making the design right known to the public".
From the point of view of the legal effect, it should be stressed that, technically speaking, the
design will be available to die public as from the date on which it has been actually registered
and not as from the date on which it is published in die Bulletin. Access to the Register by the
public is indeed guaranteed as from mis earlier date.
                                                  30
 ---pagebreak---                                               Article 52
This Article introduces the possibility of keeping a Registered Community Design secret for a
period not exceeding 30 months. This corresponds to a need of several sectors of industry which
feel they cannot afford to publish their designs before the corresponding products reach the
market. Particularly in the field of fashion (but the problem is not uncommon also in the domain
of cars), letting competitors know in advance the general line of the design of a future collection
could jeopardize the success of a commercial operation based on the exclusive character of such
a line, as the know-how protection would not be sufficient in such cases to prevent competitors
from putting similar (possibly "intelligently similar") designs on the market at the same time or
even before therightholder. Secrecy is, in these cases, the necessary answer, but if secrecy were
only left to measures inside the undertaking, the risk of losing the protection by a belated
application would be too great. Adjournment of publication is therefore therightanswer to this
need.
Paragraph (1)
The request for adjournment must be filed at the moment of filing the application. The
registration procedure is too short to permit that the request be filed at a later date. The period
during which the Registered Community Design can be kept secret cannot exceed 30 months
from die date of filing or the date of priority. This period should constitute a balance between
the need for secrecy set out above and the need for legal certainty and transparency that the
existence of unpublished and yet valid designs will certainly hamper.
Paragraphs (2), (3)
If the application accompanied by a request for adjournment of publication is granted a date of
filing, the corresponding design is registered within the same time limit and with die same
procedure as a normal Registered Community Design. The entry of die representation of the
design and die file concerning the application will, however, not be made available to the public.
The public will be informed via the Register and the Bulletin of the identity of the applicant, the
duration of the adjournment of the publication of the representation of the design and the date
of filing the application.
Paragraphs (4), (5), (7)
At the expiry of the period, or earlier at the request of the right holder, the elements which have
been kept secret will be made available to the public by die Office via the Register and the
Bulletin, and the date when this occurs will constitute the date of publication. A condition has,
however, to be fulfilled: the right holder has to pay the publication fee, which he was spared
when filing the application by paying die cheaper fee for adjournment of publication. If,
moreover, therightholder has submitted a sample instead of a representation of the design in the
cases under Article 39(2), he must supply at this stage the representation suitable for reproduction
to permit the publication in the Bulletin. Failure to comply with either of these conditions will
lead to the design right losing its effects from the outset.
The right holder in the design may, however, choose to surrender the design right. In that case
no publication takes place and the right holder avoids that the design right loses its effects -
protection against reproduction (see Article 21(2)) - from the outset.
                                                  31
 ---pagebreak--- Paragraph (6)
From what has been set out above it should be clear that the right holder of a Registered
Community Design subject to the measure of adjournment of publication enjoys a right, which
can be enforced against infringers. In view of the fact, however, mat infringers cannot be
considered to be aware of the design in view of its secret nature, the right conferred is, as long
as no publication has taken place, against reproduction only and the action for enforcement of
the rights is subject to a prior communication to the alleged infringer of the whole file, including
the representation of the design. This does not imply that the information should also be brought
to the knowledge of the public at large.
                                              TITLE VI
           TERM.OF PROTECTION OF THE REGISTERED COMMUNITY DESIGN
                                              Article 53
This provision, introduced for systematic reasons, confirms what has been stated under Article 13,
i.e. that the term of protection of the Registered Community Design is five years as from the date
of filing, renewable for periods of five years each, up to a maximum of 25 years.
                                              Article 54
This Article, modelled on die parallel Article in die Draft Regulation concerning the Community
Trade Mark, sets out the procedure to follow to renew die protection at the expiry of each period
of five years.
The renewal is subject to a request by the right holder or by a person expressly authorized by
him: it is felt that die renewal is a sufficiently important act to require such a personal
involvement of the right holder and could not be left, for instance, to die sole initiative of a
licensee. The renewal is further subject to the payment of a renewal fee which, in the long run,
is going to be the basic source of revenues for the Office.
The Office will organize the information of the right holder in good time before the expiry of the
design right. The request for renewal and the payment of the fee have to take place during the
six months preceding the expiry. A further period of six months after die expiry is, however,
accorded for submitting the request and paying die renewal fee provided an additional fee is paid.
                                              TITLE VII
      SURRENDER AND INVALIDITY OF THE REGISTERED COMMUNITY DESIGN
                                              Article 55
This provision deals with the surrender of the Registered Community Design at the initiative or
with the consent of the right holder. The provision has been modelled on the similar provision
concerning the Community Trade Mark.
                                                  32
 ---pagebreak---                                             Articles 56-58
Articles 56 and 57 follow the corresponding provisions introducing the actions for revocation or
for invalidity of the Community Trade Mark, and set up a centralized procedure before the Office
which should constitute the basic instrument for carrying out the control of the validity of a
Registered Community Design after its registration. This procedure can be initiated as soon as
the Community Design has been registered or at any point in time during its life or even after
it has expired. It answers two kinds of demands: the demand for an immediate reaction after
registration by competitors against the claim for protection (this demand is in some Member
States covered by the opposition procedure) and the demand for a single attack on the design
right for the whole Community at any later time.
In the first case, a quick reaction against a registration by an interested party would prevent
enforcement of the design right against him by a national court before the final decision on the
validity issue is taken, bearing in mind the provision of Article 95(1). Even if the right holder
acts more quickly than the third party and tries to enforce hisrightsbefore invalidity proceedings
are instituted with the Office, Article 95(2) still gives the possibility to the third party (who has
become technically an alleged infringer) to institute such proceedings and to request the national
court to stay the infringement proceedings until the Office has decided on die validity issue (this
provision leaves a discretion to the national court in order to avoid vexatious proceedings). It
should also be stressed that the length of proceedings before the Office may be monitored
generally by the way the President manages the Office's operations. This should avoid
proceedings being unnecessarily prolonged.
In the second case, the declaration of invalidity would have effect only for the past, but could
still be useful for obtaining, for instance, damages for an invalid enforcement of theright.The
international composition of the departments of the Office and the skill of their members will be
strong guarantees for die value and the impartiality of the decisions of the Office in this field.
The procedure can be initiated by any natural or legal person, including die Commission and
Member States, who considers there is good cause to see a Registered Community Design
declared invalid. In two cases, however, the entitlement to the action is subject to die proof of
 a specific interest: if the ground of invalidity invoked is the non-entitlement of therightholder
 (Article 27(1 )(d)) or if the ground invoked is the existence of an "earlier right" within the
 meaning of Article 27(2).
 The procedure is an inter partes procedure which takes place before an Invalidity Division of the
 Office. It would seem superfluous to describe in detail the provisions concerning the way of
 instituting such procedure and the examination of the application for invalidity by the department
 of the Office, as these provisions follow strictly the similar provisions already adopted for such
 inter partes administrative proceedings for the European Patent (opposition procedure), the
 Community Patent (revocation procedure) and the Community Trade Mark (revocation and
 invalidity procedures).
 An appeal can be lodged by the losing party against the decision of the Office (Article 59 ff).
                                                   33
 ---pagebreak--- Article 58 facilitates access to invalidity proceedings, as long as an invalidity procedure is
pending before the Office, by any alleged infringer against whom the right holder is trying to
enforce his rights. He has a right to intervene in the proceedings and to develop his own case
before the Office.
In addition, the Commission and the Member States are given the right to join the proceedings.
This would cover, for example, the situation where the parties might settle out of court without
a final decision on invalidity being taken. If the public interest would be best served by
continuing to a final decision, the Commission and the Member States are thus given a way of
achieving this.
The Commission intends to create a consultative committee to assist the Commission in
monitoring registrations at the Office. It is within the powers of the Commission to do so.
The committee, which is to be chaired by a representative of the Commission, will be composed
of representatives of Member States and on an ad hoc basis of representatives of industries.
In this way it is intended to ensure that registration practice corresponds to the intentions of the
Regulation.
                                            TITLE V m
                        APPEALS FROM DECISIONS OF THE OFFICE
                                           Articles 59-65
These Articles deal with die appeal procedure which is open to any party to proceedings before
the Office adversely affected by a decision of the Office. The right of appeal will dierefore exist
against decisions taken during the registration procedure (ex-parte procedure) or during the
invalidity procedure (inter partes procedure), and also against other types of decisions that the
Office might be called to take under die Regulation (e.g. decisions concerning the professional
representatives, decisions on the restitutio in integrum, etc.).
This set of provisions is closely modelled on the similar provisions which have been worked out
for the Community Trade Mark. As the discussions within die Council on those provisions were
not yet concluded when die present proposal was prepared, it is important to note that the content
of the present proposal will need to be adapted to take account of any amendment introduced in
the Community Trade Mark Regulation which proves acceptable to the Commission in that
instance. It is almost superfluous to stress how important it is for the users of the Community
Trade Mark and Design systems to be presented with an absolutely unitary appeal mechanism.
Bearing in mind what has been said above it would seem superfluous to comment in detail on
each provision about appeals. It should be sufficient to recall that the appeal takes place before
 one of the Boards of Appeal instituted within the Office and having quasi-jurisdictional character
 (see also Articles 117 to 120). Against the decisions of the Board of Appeal, a further appeal can
be lodged before the Court of Justice. It is to be expected, however, that the Court of Justice will
 require the Council, in accordance with Article 168a EEC, to assign these cases to the Court of
                                                  34
 ---pagebreak--- First Instance, with a possibility of control of the decisions of the latter over questions of law
("contrôle de cassation"). If a decision by a Board of Appeal were considered not to comply with
Community law but had not been appealed against by the interested party and thus had become
final, the Commission or a Member State could introduce an "appeal in the interest of the law"
before die Court of Justice. The ruling of the Court on such an appeal would not affect the
decision at issue but should establish the imperative rule to be applied in future in similar cases.
                                              TITLE DC
                              PROCEDURE BEFORE THE OFFICE
                                              Section 1
                                         General provisions
                                              Section 2
                                                Costs
                                              Section 3
                      Information of die public and of the official authorities
                                        of the Member States
                                            Articles 66-80
These Articles contain a number of provisions establishing general rules to be followed during
any procedure before the Office. Subject to a few exceptions which will be set out below, these
rules have been literally taken over from the similar rules established by the Regulation on the
Community Trade Mark. For most of them, an easier way of introducing them in relation to the
Community Design Office would have been to refer to the corresponding provisions in the Trade
Mark Regulation and to declare them applicable mutatis mutandis in the framework of this
Regulation. On reflection, however, it has been considered that it would help the users of the
Community Design system to have the entire set of rules applicable set out in one instrument,
without being obliged to resort to a different Regulation. This explanatory memorandum will
confine itself to considering those provisions where specific rules have been provided, namely
 Articles 76, 77, 78.
 Article 76 establishes the Community Design Register. It makes clear that any entry in the
Register must be open to public inspection, except those entries which are subject to die measure
 of adjournment of publication in accordance with Article 52(2).
 Article 77 provides for two periodical publications of the Office: the Community Design Bulletin
 where the publication of the Registered Community Designs will take place, and the Official
 Journal of the Community Design Office containing notices and information of general character
 for the users of the system. It should not be excluded that in future the Official Journal of the
 Community Design Office be merged with the Official Journal of the Community Trade Mark
 Office in view of the similarity of contents and of audience.
                                                  35
 ---pagebreak--- Article 78 deals with inspection of files and contains a few features dictated by the specificity
of the design procedures.
The general principle (Article 78(1)) is that the files relating to applications for Registered
Community Designs are not open for public inspection without the consent of the applicant as
long as the Registered Community Designs in question have not been published. This provision
is supplemented by the exclusion from inspection of the files without therightholder's consent
of the files relating to a Registered Community Design which is subject to a measure of
adjournment of publication. This exclusion remains valid until the expiry of the adjournment.
Should the Registered Community Design be surrendered before or at the expiry of the
adjournment, in any event before publication takes place, the file would continue to remain secret
indefinitely. There is indeed no reason to open to public inspection a file relating to a design in
respect of which therightholder has given up any claim to protection from the outset. No rights
can be enforced on the basis of such a Registered Community Design and it seems therefore fair
that the person having surrendered therightshould recover dierightof keeping out of the reach
of the public the designs and ideas which were contained in the Registered Community Design
which has been abandoned. Except for these cases die files should, as a matter of principle, be
open to public inspection.
Article 78(2) establishes an exception to the rule preventing access to a file relating to an
application or a design right which has not yet been published or to a design right which has
been surrendered before the publication took place. Inspection without die consent of the
applicant or therightholder may take place on die basis of a decision of the Office if the person
wishing to inspect the file can establish a legitimate interest. This will, in particular, apply if
steps have been undertaken by the applicant or therightholder with a view to invoking against
the person in question the right under the Registered Community Design. It would only be fair
under these circumstances that the person threatened with legal action should have access to
documentary evidence which is going to be crucial if the action is eventually initiated.
                                              Section 4
                                           Representation
                                            Articles 81-82
These Articles deal with the question of representation before the Office. The general principles
contained in Article 81 are modelled on die rule in the Community Trade Mark Regulation (and,
also, like the Regulation, on the rule in the European and Community Patent Conventions).
Similarly, Article 82 sets out the principle also contained in that Regulation and die Conventions
that the professional representation before the Office may only be undertaken by persons whose
names appear on a list of professional representatives maintained by the Office. Alternatively,
representation may be undertaken by legal practitioners qualified in a Member State to the extent
that they are entitled in that State to act as professional representatives in design matters.
                                                  36
 ---pagebreak--- The conditions to be fulfilled in order to be entered on the list have been worked out bearing in
mind the specific requirements which can be set for a person wishing to operate before an Office
dealing with design law. Further to the requirement of having a place of business or employment
within the Community, the candidate for entry on the list must be entitled to represent in
industrial property matters before the central property office of the State where he has the place
of business or of employment. This very broad requisite covers ability to represent in patent
and/or in trademark matters. A logical extension of this broad approach has been to include also
persons appearing on the list of professional representatives entitled to represent before the
European Patent Office as well as persons whose names appear on the list of professional
representatives maintained by die Community Trade Mark Office.
In the Member States where the entitlement to the activity before the central property office is
not conditional upon the requirement of a specific professional qualification, which is often die
case for representation in trademark matters, such a requirement is replaced by a professional
experience of at least five years, unless the law of the Member State concerned recognizes
officially such entitlement to the person in question.
                                                TTTLEX
                   JURISDICTION AND PROCEDURE IN LEGAL AdTONS
                             RELATING TO COMMUNITY DESIGNS
                                                Section 1
                                     Jurisdiction and Enforcement
                                                Section 2
            Disputes concerning the infringement and validity of Community Designs
                                                Section 3
                           Other disputes concerning Community Designs
                                             Articles 83-98
 Articles 83 to 98 deal with the litigation system concerning Community Designs. They have been
 largely modelled on the corresponding provisions of the draft Regulation on die Community
Trade Mark as, in this field as in the field of the procedures before the Office, it is extremely
 important for the users to be presented with rules which are as unitary as possible. This set of
 provisions also takes into account, as far as possible, the very similar litigation system established
 by the Protocol on Litigation annexed to the Agreement relating to Community Patents, except,
 for obvious reasons, the provisions concerning die role of COPAC.
 This explanatory memorandum will therefore be restricted to comments relating to the specific
 features of the litigation system concerning design rights, without going into details relating to
 provisions which have already been accepted by the Community or by the Member States in a
 different context. For this reason, no comment appears on Articles 90, 91, 92, 95, 96 and 97.
                                                    37
 ---pagebreak--- In general terms, it should be sufficient to recall that the litigation system sets out the rules
relating to jurisdiction and procedure in legal actions concerning a design right which extends
its effects to the whole of the Community and the enforcement of which is entrusted basically
to the courts of the Member States. This system is articulated in three sections:
- Section 1 enshrining the principle of the application of the Brussels Convention on Jurisdiction
   and Enforcement;
- Section 2 containing a set of rules replacing or completing the corresponding rules of the
   Brussels Convention, applicable to disputes concerning the infringement and the validity of a
   Community Design;
- Section 3 containing some specific rules supplementing the general rules of the Brussels
   Convention and applicable to other disputes concerning a Community Design.
Article 83, setting out the principle of the application of the Brussels Convention of
27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
Matters, does entirely correspond to the parallel provisions relating to the Community Trade Mark
and Community Patent.
The derogations (often more formal that substantial) from the Brussels Convention set out in
paragraph (2) are needed to introduce a completely unitary set of rules concerning jurisdiction
and enforcement, covering also those cases which, under the Brussels Convention, would be left
to the various non-harmonized rules of international private law of die Member States (e.g. when
the defendant is not domiciled within the Community). In the absence of a complete and unitary
regime, the risk would be great that conflicts of jurisdiction (positive or negative) would arise
between courts of different Member States, that contradicting decisions could be pronounced on
the same case and finally mat "forum shopping" could be used to an extent incompatible with
the functioning of an integrated market.
The Regulation does not provide for a transitional provision covering the case where, for some
Member States, die Brussels Convention may not yet be in force when the Regulation is applied.
This prospect seems so improbable, bearing in mind the rapid progress in the ratification of the
San Sebastian Convention of 1989 concerning the accession of Spain and Portugal to the Brussels
Convention (which is in force already amongst the other ten Member States), that it would seem
politically awkward to envisage such a hypothesis in the Regulation. Any problems which could
arise with respect to future members of the Community or within die framework of an extension
of the Regulation to the European Economic Space, could be dealt with in the negotiations to be
carried out in those contexts.
Article 84 requires the Member States to designate a limited number of national courts of first
and second instance which will act as "Community Design Courts", i.e. which will have the
exclusive jurisdiction for infringement and validity cases relating to Community Designs. The
provision follows entirely the corresponding provisions for setting up the Community Patent
Courts and the Community Trade Mark Courts. The wish is expressed that the Member States,
in designating such courts, will restrict themselves to the courts mentioned in the Annex to the
Protocol on Litigation relating to Community Patents (subject to the necessary completion relating
to Spain, Portugal and the new Lander of the Federal Republic of Germany).
                                                 38
 ---pagebreak--- The Community Design Courts (Article 85) will have exclusive jurisdiction in infringement
actions relating to Community Designs, but also, to the extent that such actions are permitted
under the law of the State where the court is situated, in actions relating to threatened
infringement and in actions for declaration of non-infringement. As far as validity is concerned,
a difference must be drawn between Unregistered and Registered Community Designs.
For Registered Community Designs, a direct action for declaration of invalidity is open before
the Office under Article 56 ff of the Regulation. In order to favour this central action, no direct
action requiring a declaration of invalidity of a Registered Community Design should be allowed
before the Community Design Courts: the defendant in an infringement action should, however,
be allowed to raise such a question before the Community Design Courts, provided this is
achieved by way of a counterclaim. One might wonder why this limitation, which has been
accepted for the Community Patent and Trade Mark, should be maintained dealing with a title
of protection which, as in the case of the Registered Community Design, has been accorded
without any prior substantial examination or possibility of opposition by interested parties. The
Commission feels that, although undoubtedly the Registered Community Design is not as strong
a title as a Community Patent or a Community Trade Mark, it would not be excessive to require
a person who is attacked on the basis of such arightto react by a counterclaim, and not simply
by raising the question of the validity as a defence as to the merits, without simultaneously
requiring die judge to decide with effect erga omnes on the validity of the design right. The
advantage of keeping the Community Design Register "clean" of any rights which have been
found invalid by a competent jurisdiction should prevail over the limited procedural onus which
is put on the defendant by requiring from him that a counterclaim be formulated.
 For the Unregistered Community Designs, no action before central instances has been foreseen;
 it is therefore necessary to establish rules on jurisdiction for the cases where an action for a
 declaration of invalidity will have to be brought. Article 85(c) recognizes an exclusive jurisdiction
 for such a direct action to the Community Design Courts, which would obviously be also
 exclusively competent if the question of invalidity were to be raised under a counterclaim by the
 defendant during an infringement action. Although in this case the exclusion of a defence as to
 the merits submitted otherwise than by counterclaim could not be justified by a reference to a
 "clean" Register, it would seem, in the interest of the public at large, that an Unregistered
 Community Design which has been found invalid by a competent judge should, if invoked
 against third parties in different circumstances, no longer require a second consideration of its
 validity.
 Articles 86 and 87, setting out the rules of international jurisdiction, follow entirely the
 corresponding provisions relating to the Community Patent and Trade Mark. It should only be
 recalled that Article 86 will require, like the two corresponding provisions for the Community
 Patent and Trade Mark, negotiations with the EFTA countries parties to the Lugano Convention
 on Jurisdiction and Enforcement of 1988, as it contains rules which conflict with the obligations
 of the Member States resulting from that Convention when the defendant is domiciled in such
 an EFTA country. The hope is expressed that it will be possible to find a solution to these
 difficulties within the framework of the European Economic Space.
                                                  39
 ---pagebreak--- It should also be stressed that application of Article 86 to direct actions for declaration of
invalidity of Unregistered Community Designs (a situation unknown with the Community Patent
or Trade Mark) will result in providing one single "forum" within the Community, as the
alternative forum of the place where the illegal act has been committed, typical of infringement,
would simply not be applicable. The action for a declaration of invalidity will, therefore, have
to be brought exclusively in the Member State where the defendant (the right holder) has his
domicile. If this criterion fails, the jurisdiction would lie in the Member State where the right
holder has an establishment or, successively, where the plaintiff (the person attacking the validity)
has his domicile or an establishment, orfinallyin the Member State where die Office is situated.
Article 89 basically excludes the possibility of invalidity being raised as a defence in an
infringement action other than by a way of a counterclaim. This has already been commented
upon under Article 85. Paragraph (3) provides, however, an exception to this exclusion, when the
defence is based on a claim of invalidity resulting from the existence of an "earlier national right"
within the meaning of Article 27(2). As such rights cannot be invoked against a Community
Design by persons other than theirrightholders, it goes without saying that such a defence could
only be raised by therightholder of the earlierright.The reason for permitting invalidity to be
raised without counterclaim in such a case is that the result of a possible finding that the
Community Design is invalid would only be a partial invalidity, because it would be limited to
the territory of the Member State or States where the ground for invalidity obtains.
The provision of Article 89(1) is intended to limit abusive claims as to the invalidity of the
Community Design. It needs, however, to be supplmemented by a provision reversing the onus
of proof in cases where therightholder shows that his design has an individual character in the
sense that it differs significantly from other designs on die market. If this is the case, it is highly
likely mat the design in question has been created by the designer himself and not copied. It is,
therefore, also likely that it is novel. It appears in this case appropriate that the alleged infringer
who challenges the validity of the Community Design by contesting that it is not novel, should
be required to produce evidence to show that it is not novel.
A corresponding provision does not appear to be necessary in invalidity proceedings before the
Office. Where a third party before the Office makes an application regarding invalidity it goes
without saying that the Office will request that he provides further information to sustain his
claim.
Article 93 deals with the question of the sanctions in actions for infringement. This is a
particularly sensitive question. Interested circles have repeatedly indicated that an efficient
enforcement of therightsconferred by the Community Designs and a greater uniformity in the
way national courts react against infringement would be fundamental for the success of the
Community Design project.
It has to be recognized that, in the present stage of European integration, it is difficult to
intervene on matters where the traditions and the substantive and procedural rules of civil law
applied by the courts of the Member States differ profoundly. The basic rule should, therefore,
remain that each national court will apply the sanctions provided by the law of the Member State
where it is situated in order to enforce the rights violated by an infringement. This will in
particular apply to "damages", where the differences of approach in the various jurisdictions are
                                                   40
 ---pagebreak--- so great that it would be pointless to try to find some common denominator in the limited
specific field of design protection. The whole problem of more uniform sanctions in respect of
non-contractual liability should be solved at Community level in more general terms in the
perspective of the functioning of the internal market.
Pending future initiatives in this respect, the obligations of Member States under existing
international treaties and treaties presently under discussion as regards enforcement of intellectual
property rights are recalled.
Notwithstanding the difficulties, some progress can be achieved in this field by providing some
common instruments and by requiring the judge to have recourse to such instruments if the
conditions set out in the provision are met. The provision mentions three common sanctions:
- the court order prohibiting the infringer from proceeding with the infringing acts;
- the seizure of the infringing products;
- the order addressed to the infringer to provide information concerning the origin and the
   commercial channels of the infringing products.
The prohibition against continuing with the infringing acts has already been accepted as a
common sanction for the Community Patent and Trade Mark. If the courtfindsthat the defendant
has infringed or threatened to infringe a Community Design, it must pronounce such an order of
prohibition, unless there are special reasons for not doing so. The legal means to ensure that such
an order will be complied with shall be determined by die lex fori.
The seizure of the infringing goods and the order to supply information have also, unless there
are special reasons for not doing so, to be pronounced by the judge if hefindsthat a Community
Design has been infringed (threatened infringement does not play a role in such a case). Such
special reasons might arise, for example, if under the given circumstances a seizure of the goods
would be pointless, or unduly harsh. Similarly, in certain cases the order to provide information
could be void of any meaning, if for instance the infringer is the manufacturer of the infringing
goods. The judge has, however, to justify in each decision the reasons why he has felt that, under
the given circumstances, it would not have been appropriate to apply one or both of these
sanctions, thus permitting a legal control of the application of this provision by the further
instances.
Article 94 deals with provisional, including protective, measures. Paragraphs (1) and (3)
correspond literally to the simitar provisions adopted for the Community Patent and Trade Mark
except that the right to request information concerning the origin of an allegedly infringing
product (Article 93(2)(a)) has been made explicitiy applicable. Some commentary is needed for
paragraph (2) which is new.
The prohibition against invoking the invalidity of a Community Design as a defence otherwise
that by way of counterclaim (see Article 89) is intended to apply in the course of the main action
for infringement. Normally, however, actions for infringement are preceded or accompanied by
requests for provisional measures which play an extraordinarily important role in procedural
tactics. Obliging a defendant to raise the defence of invalidity by counterclaim in the framework
of a procedure for a provisional measure would be simply unfair. Moreover, many legal systems
                                                  41
 ---pagebreak--- do not allow a counterclaim during a procedure which by definition must be speedy and based
on prima facie considerations. It would, on the other hand, be unjustified to prohibit the defendant
from raising the invalidity of the Community Design as a defence, as the arguments he could
develop could be extremely useful for the judge in taking his decision. For these reasons, it has
been specifically indicated that the defence of invalidity may be raised by the defendant in those
proceedings otherwise than by way of counterclaim. The provision of Article 89(2) on the onus
of proof is, however, equally applicable in this case.
Article 98, which concerns actions relating to Community Designs other man infringement or
invalidity actions, extends to such actions the prohibition of invoking invalidity of the
Community Design as a defence otherwise than by way of counterclaim, as well as the two
exceptions provided for in the cases of "national earlierrights"and of "provisional, including
protective, measures".
                                             TITLE XI
                    EFFECTS ON THE LAWS OF THE MEMBER STATES
                                             Article 99
The creation of the Community Design raises the question of the relationship of this new title
of protection with the existing national registered design rights which are the object of the
parallel proposal for a Directive for harmonization of the basic provisions of substantive law
applicable to them. Although the Commission hopes that the Community Design system, thanks
to its modern conception and to its low-cost and user-friendly procedural mechanisms, will
rapidly occupy a prevalent position, it would be illusory to think that the existing and experienced
national legal instrumente could be immediately abandoned. National registered designrightsand
 Community Designs are therefore going to co-exist in the next years and the question of their
 relationship has to be clarified.
 Contrary to what had been suggested in the Green Paper, the Commission has been convinced
 by the remarks of die interested circles that, if the two forms of protection are going to co-exist,
 there is no valid reason to provide that, if the same design is protected by both a Community
 Design and a national designright,the latter should become ineffective. It might well be pointless
 for arightholder to keep for the same design parallel protections valid on the same territory and,
 after the harmonization, subject to identical rules of substantial law and conferring an identical
 scope of protection. The decision to abandon superfluous national protections, however, should
 be left with therightholders and not be imposed by the law-maker. The conclusion is that it will
 be perfectly feasible for a right holder to maintain for the same design parallel protections
 consisting of a Community Design and one or several national registered design rights. This
 "cumulation" of protection of the same design by different titles having the same nature has a
 precedent in the draft Regulation on the Community Trade Mark which also permits the co-
 existence of identical national and Community Trade Marks in the hands of the same right
 holder.
                                                    42
 ---pagebreak--- Having established this line of policy, the Commission has, however, felt that, just as in the case
of the Community Trade Mark, it could be avoided that die right holder should bring abusive
legal actions involving the same cause of action between the same parties, by invoking one of
the co-existing rights after a competent court has already decided the issue on the basis of die
parallelright.Article 99, modelled on a similar Article in the draft Regulation on the Community
Trade Mark, empowers the courts to prevent the consequences of such vexatious actions.
                                            Article 100
This is a fundamental provision, setting out the rule governing die relationship between the
protection resulting from the Community Design system and the protection that a design can
obtain under other legal instruments offered by Community or national legislations.
The general principle on which this provision is based is "cumulation": if a design protected by
a Community Design can also be protected under Community or national law by a different legal
instrument, the existence of die protection under the Community Design system should constitute
no hindrance for the right holder to invoke such further protection. Whilst paragraph (1)
establishes this principle for a number of specific forms of protection, paragraphs (2) and (3) deal
with the most important and common form of concurrent protection, the protection under
copyright law.
Paragraph (1)
Paragraph (1) mentions as typical forms of protection which could, under specific circumstances,
co-exist with the protection under Community Design, trademarks or other protected distinctive
signs, patents and utility models, typefaces, civil liability and unfair competition.
Trademarks means, first of all, national trademarks of the Member States, including those
resulting from an international filing under the Madrid Agreement. Cumulation of protection of
a Community Design is also possible with a Community Trade Mark, the creation of which is
close-at-hand. The reference to other distinctive signs should cover a number ofrightswhich are
acknowledged under the national legal systems, for instance to commercial names or "enseignes".
The reference to patents covers both national and European Patents designating Member States
and will also cover Community Patents. The reference to utility models concerns those Member
States which provide such an instrument (actually only Germany, Italy, Greece, Spain and
Portugal and, more recently, Denmark), but it should also cover the "unregistered design right"
introduced in the United Kingdom by the 1988 Act on Copyright, Designs and Patents and which
constitutes a different answer to die need for protection of technical innovation not reaching the
level required for patent protection.
Typefaces have been mentioned to make sure that the specific protection afforded to these
designs in some Member States, particularly those which have ratified the 1973 Vienna
Convention, is covered.
Finally, civil liability and unfair competition have been mentioned, which can be very useful
instruments supplementing the specific protection of design.
                                                 43
 ---pagebreak--- Cumulation with the protection of topographies of semi-conductor products has not been
mentioned for the reasons stated in the comments to Article 3.
Paragraph (2)
Paragraph (2) contains the basic rule of the cumulation of the protection under the Community
Design system and the protection under copyright law.
The attitude of the legislations of the Member States toward copyright protection of design varies
enormously, as it has been shown in the Green Paper and confirmed by all the comparative
studies which have been conducted on this subject.
The Commission wishes to stress that it remains attached to the policy set out in the Green Paper
in this respect. The smooth functioning of the internal market for products embodying design is
going to be fully achieved only if the Community Design system is supplemented by harmonized
national rules of copyright law relating to the protection of design. This is, however, a formidable
task which needs intense preparation, further comparative studies and contacts with national
authorities and interested or academic circles. If the introduction of the Community Design should
be subordinated to the achievement of such an harmonization, the urgent need of giving to design
industry an efficient tool for the internal market could not be satisfied within a reasonably short
period. It is, however, important that the Member States be aware of die Commission's intention
to proceed in the direction indicated: acceptance of the principle of "cumulation" of protection,
as defined in this paragraph would constitute their first contribution in this direction. It should
also be stressed that it would be difficult to require Member States which traditionally attach the
utmost importance to protection of design by copyright, like France or the Benelux States, to
accept die "market oriented approach" of this Regulation, if they were not sufficiently satisfied
that harmonized rules of copyright law will be laid down at Community level in order to protect
the creativity aspect of the activity of design.
Accepting die principle of "cumulation" should not, however, prevent the Member States who
already apply such a principle under restrictive conditions (Germany, Spain, Portugal, Denmark,
Ireland)fromcontinuing to do so. For thetimebeing, the extent and the conditions of protection,
including the level of originality required, would continue to be autonomously determined by
each Member State. The introduction in the Regulation of the principle of "cumulation" would,
on the contrary, have an immediate impact for Italy, where the principle of "cumulation" is
excluded by the existing legislation.
Further to acceptance of the principle of "cumulation", this paragraph requires the abolition by
the Member States concerned of a few provisions of copyright law which, because of their
outdated character, would jeopardize the application of cumulation.
The Common Law countries apply a rule (the legal instruments differ in Ireland and in the
United Kingdom, but the result is die same) under which the possibility of protecting a design
by copyright is linked to the number of products in which the design is intended to be embodied.
 Should such a number exceed 50, the protection under copyright law could no longer be
                                                  44
 ---pagebreak--- afforded (Ireland) or the term of protection would be dramatically reduced (United Kingdom).
Such an arbitrary figure, which finds a historical explanation in the practice of the national
industrial property offices in the first years of this century, should no longer have a place in
contemporary protection of works of applied arts.
In Italy, the copyright law subordinates protection to the condition of "scindibilità" (possibility
of separating the work of applied art from the product in which the work is embodied). The
interpretation given by the case-law to mis notion has led to the impossibility for modern
industrial design to benefit in Italy from copyright protection, even for the most prestigious and
authoritative creations by contemporary artists, whilst protection can be recognized to two-
dimensional ornamental designs even with a very low originality level. The Commission
considers appropriate, and its feeling is indeed supported by die very strong request in this sense
expressed by all the interested circles, that such a provision should be abolished without awaiting
the future harmonization.
Paragraph (3)
Paragraph (3) deals with anodier urgent problem linked with the application of the principle of
cumulation of design protection with copyright protection. The Green Paper has set out the
problem raised by a provision of the Berne Convention which permits States party to this
Convention to accord protection under copyright law to designs having their origin in another
State party to the Convention only under die requirement of "reciprocity". If in the country of
origin of the design, protection can be accorded only in the specific form of a registered design
right, it is only in this form that protection can be invoked in the other States parties to the Berne
Convention, but not under copyright law.
This provision, legitimate in an international context where, in the absence of elaborated rules
as in the field of patents or trademarks, it is difficult to entirely rely on the principle of "national
treatment", raises a difficulty if applied in an intra-Community context. It is obvious that this
provision leads to a discrimination in the treatment of the persons seeking protection according
to the country where the design has its origin. An Italian undertaking - but often a German
undertaking as well - will be denied in France or in the Benelux countries protection under
copyright law for its designs on the ground that such designs cannot be protected under present
Italian legislation (or can only in very rare case be protected under German legislation) by Italian
(or German) copyright law. The same designs, however, would benefit from full copyright
protection in France or in the Benelux if their origin had been in those countries.
The introduction of the principle of "cumulation" in paragraph (2) and the elimination of the most
blatant limitation of copyright protection in Italy by die abolition of the condition of "scindibilità"
 should lead the countries which accord a very generous protection to design under their copyright
legislation to accept to give up this practice of discrimination in intra-Community relationship.
                                                   45
 ---pagebreak---                                               TITLE XII
                             THE COMMUNITY DESIGN OFFICE
                                               Section 1
                                          General provisions
                                               Section 2
                                     Management of the Office
                                               Section 3
                                        Administrative Board
                                           Articles 101-112
These Articles deal with die general nature and die management of the Community Design
Office, the Community body which will have the task of monitoring the procedures relating to
the Registered Community Design under this Regulation.
The provisions reflect the relevant provisions of the Regulation on the Community Trade Mark.
For example, the status of its staff, its privileges and immunities, its languages of procedure will
be the same as those adopted for the Trade Mark Office. The seat of the Community Design
Office will be located at die seat of the Community Trade Mark Office.
                                               Section 4
                                   Implementation of procedures
                                           Articles 113-119
These provisions enumerate the departments of the Community Design Office which will be
competent for dealing with the procedures under this Regulation.
Four departments have been foreseen:
- the Formalities Examining Divisions, in charge of the examination as to formal requirements
   of an application for a Registered Community Design, up to the decision of registration;
- the Design Administration and Legal Division, competent for any decision required by the
   Regulation which does not fall within the competence of a Formalities Examining Division or
   of an Invalidity Division. It will, in particular, deal with decisions concerning entries in the
   Register and keeping the list of professional representatives;
- the Invalidity Divisions, in charge of the procedures for a declaration of invalidity;
- the Boards of Appeal, responsible for deciding on appeal against decisions of any other
   department of the Office.
In view of the quasi-jurisdictional character of the Boards of Appeal, Article 118 sets out
guarantees of independence of their members which are modelled on those contained in the
Trade Mark Regulation for the members of the Boards of Appeal set up under that instrument.
                                                   46
 ---pagebreak---                                              Article 120
During the running-in period of the Community Design Office, the number of cases to be dealt
with by the Invalidity Divisions and by the Boards of Appeal will be necessarily modest and will
then progressively increase, possibly at a different pace for the two departments, until it justifies
a complement of permanent staff of the Office to man these departments.
Before this stage is reached, it has been considered appropriate to give the President of the Office
the possibility to appoint for die tasks to be carried out by these two departments persons having
experience in matters of design law on a short-term basis. The requirements to be fulfilled by
such persons differ for the two departments and are obviously higher for the function of members
of a Board of Appeal. In the latter case also, in order to safeguard the principle of independence
of the members, the short-term contract may not be for less than one year.
The competence for deciding when the transitional period will expire for each of these two
departments so that they also will have to be staffed by full-time members will lie with the
Commission on a proposal by the President of the Office.
                                               Section 5
                                         Financial provisions
                                           Articles 121-122
These Articles deal with the budgetary and financial rules applicable to the Community Design
Office.
                                             TTTLE X m
                                       FINAL PROVISIONS
                                             Article 123
The official languages and languages of procedure of the Office are to be the same as those of
the Community Trade Mark Office. The rules governing hôw a language may be chosen in any
of the procedures before the Office will be somewhat simpler for the Community Designs Office,
because there will be no opposition procedure. The rules will be determined in die implementing
regulations, once die Community Trade Mark Regulation is finalized.
                                             Article 124
This provision deals with the Implementing Regulation. An Implementing Regulation is
indispensable to permit the Various procedures before the Office to be operated in an efficient and
clear manner. A number of procedural details (the length of certain time limits, the details of
presentation of the applications, etc.) will have to be established so that die users of die system
would know how to act in practice, within die framework of the fundamental rules established
by die main Regulation. The practice of adopting an Implementing Regulation under a less
                                                  47
 ---pagebreak--- rigorous procedure than the main legal instrument, in order to facilitate the adoption of
amendments to adapt the rules to future needs, is a common practice in the field of industrial
property and has been already applied in the case of the European Patent, Community Patent and
Community Trade Mark.
It is proposed that the competence and the procedure for adoption of the Implementing
Regulation should be die same as for the Fees Regulation, for the reasons set out below under
Articles 126 and 127.
                                               Article 125
A system of exchange of information on the decisions taken by various Community Design
Courts and the departments of the Office concerning interpretation of the requirements for
protection should contribute significantly to the unifying effect of future case law of the Court
of Justice in this area. It would cover both Community Design and design rights of Member
States. The information resulting from this system will be the subject of exchanges of views at
regular intervals within the Administrative Board (Article 109). In this manner, the Commission
could assess in full knowledge of the opinion of the Board whether and when a new initiative
would be useful in order to adapt the rules relating to the requirements of protection.
                                            Articles 126-127
Article 127 concerns the Fees Regulation. It enshrines the fundamental principle that die amounts
of the fees will have to be set at such a level as to ensure that the revenue of the Community
Design Office will be, in principle, sufficient for the Office's revenue and expenditure to be
balanced. The self-supporting character of the Community Design Office must therefore be
guaranteed by an appropriate level of fees. As has been already stressed, particular importance
will attach in this context to the renewal fee, whose possibly progressive structure will have to
be determined by the authority adopting the Fees Regulation.
It is in conformity with the Community institutional system as it results from the so-called
"comitology" Decision that the adoption of the Fees Regulation, in view of its character of
secondary legislation with respect to the present main Regulation, should be the task of the
Commission (Article 126).
                                               Article 128
This final provision introduces a distinction between the moment when the Regulation will enter
into force, i.e. will become law having legal force within the Community, and die moment when
the actual application of its rules will start, in particular when the Community Design Office will
open its doors to the public.
The formal entry into force can be fixed on the sixtieth day following the publication of die
Regulation in the Official Journal of the European Communities. A longer period is necessary
to prepare die opening of the Office. An important preparation effort has to be performed to this
effect: working out and adoption of die Implementing Regulation, choice of the main members
of the staff which will start the operation of the Office, first of all the President, choice and
                                                    48
 ---pagebreak--- arrangement of the building where the Community Design Office will be located. These are only
some of the many tasks which need to be achieved before die Office can be opened to the public.
The burden of preparing the opening will fall on the services of the Commission, which will need
support from the specialists from the various Member States.
The Commission hopes that it should be possible to open the Community Design Office to the
public three years after die date of final adoption of this Regulation.
                                                 49
 ---pagebreak---                                             Proposai for a
                 EUROPEAN PARLIAMENT AND COUNCIL REGULATION
                                     on the Community Design
TOE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing die European Community, and in particular Article 100a
thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the Economic and Social Committee(2),
(1) Whereas the objectives of the Community as laid down in the Treaty include establishing an
     ever closer union among the peoples of Europe, fostering closer relations between the States
     belonging to the Community, and ensuring die economic and social progress of the
     Community countries by common action to eliminate die barriers which divide Europe;
     whereas to that end the Treaty provides for the establishment of an internal market and
     includes the abolition of obstacles to die free movement of goods and the institution of a
     system ensuring that competition in the common market is not distorted; whereas a unified
     system for obtaining a Community Design to which uniform protection is given with uniform
     effect throughout the entire territory of the Community would further those objectives;
(2) whereas only the Benelux countries have introduced a uniform design protection law; whereas
     the only other design protection that exists in the Community is a matter for the relevant
     national law and is confined to the territory of the Member State concerned; whereas there
     is no such relevant law in any one Member State at the present time; whereas identical
     designs may be protected differentiy in different Member States and for the benefit of
     different owners; and whereas this inevitably leads to conflicts in the course of trade between
     Member States;
(3) whereas die substantial differences between Member States' design laws prevent and distort
     Community-wide competition between the producers of protected goods, because in
     comparison with domestic trade in, and competition between, products incorporating a design,
     trade and competition within the Community are prevented and distorted by the large number
     of applications, offices, procedures, laws, nationally circumscribed exclusive rights and the
     combined administrative expense with correspondingly high costs and fees for the applicant;
 0)  OJNo
 (2)
      OJNo
                                                  50
 ---pagebreak--- (4) whereas the effect of design protection being limited to the territory of the individual Member
    States, whether or not their laws are approximated, leads to a possible division of the internal
    market with respect to products incorporating a particular design in areas with different right
    owners, and hence constitutes an obstacle to the free movement of goods;
(5) whereas this calls for the creation of a Community designrightwhich is directly applicable
     in each Member State, and of a Community design authority with Community-wide powers,
     because only in this way will it be possible tp obtain, through one application made to one
     common design office in accordance with a single procedure under one law, one design right
     for one area encompassing all Member States;
(6) whereas it is thus for the Community to adopt measures to achieve those objectives, which
     cannot be achieved by the Member States acting individually and which by reason of the
     scale and the effects of the creation of a Community design right and a Community design
     authority can only be achieved by the Community;
(7) whereas superior design is an important attribute of Community industries in competition
     with industries from other countries, and is in many cases decisive in the commercial
     success of the associated product; whereas enhanced protection for industrial design not only
     promotes the contribution of individual designers to the sum of Community excellence in
     the field, but also encourages innovation and development of new products and investment
     in their production; whereas a more accessible design-protection system adapted to the needs
     of the internal market is therefore essential for Community industries;
(8) whereas such a design-protection system would constitute the prerequisite for seeking
     corresponding design protection in the most important export markets of the Community;
(9) whereas designs produced to meet a functional requirement and providing no opportunity
     for inclusion of further and arbitrary design features should, however, be excluded from such
     protection;
(10) whereas interoperability of products of different makes should not be hindered by extending
     the protection to die design of mechanical fittings;
(11) whereas mechanical fittings may nevertheless constitute an important element of the
     innovative characteristics of modular products especially designed to enable any number of
     such products, which may be identical or different but interchangeable, to be connected
     simultaneously in a modular system, and dierefore should be eligible for protection; but
     whereas this derogation should not prevent the replacement of one part of a non-modular
     system by a part of different make solely because the replacement part must possess a
     particular shape and configuration in order for the parts to work together in performing the
     intended function of the system;
                                                 51
 ---pagebreak--- (12) whereas the legal protection of design might in certain circumstances allow the creation of
     monopolies in generic products and captive markets by improperly binding consumers to a
     specific make of product and thus the introduction of a provision is necessary in order to
     make the reproduction of designs applied to parts of complex products possible for repair
     purposes under very specific conditions;
(13) whereas the provisions of this Regulation are without prejudice to the application of the
     competition rules under Articles 85 and 86 of the Treaty;
(14) whereas a Community design right should serve the needs of all sectors of industry in the
     Community; whereas those sectors are many and varied;
(15) whereas some of the sectors produce large numbers of designs for products frequently
     having a short market life where protection without the burden of registration formalities is
     an advantage and die duration of protection is of lesser significance; whereas, on the other
     hand, there are sectors of industry which value die advantages of registration for the greater
     legal certainty it provides and which require die possibility of a longer term of protection
     corresponding to the foreseeable market life of their products;
(16) whereas this calls for two forms of protection, one being a short-term unregistered design
     right and the other being a longer term registered design right;
(17) whereas a registered Community design right requires the creation and maintenance 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; whereas the performance of those
     functions requires a Community Design Office; whereas the registration system should not
     be based upon substantive examination as to compliance with requirements for protection
     prior to registration, thereby keeping to a minimum the registration and other procedural
     burdens on applicants;
(18) whereas a Community Designrightshall not be upheld unless the design is new in the sense
     that it is not identical to any other design previously made available to the public, and unless
     it also possesses an individual character in comparison with other designs which are
     currently exploited in the market, or which have previously been published following
     registration as being still valid Community Designs or still valid designrightsof a Member
     State;
(19) whereas it is also necessary to allow the designer or his successor intitleto test the products
     embodying the design in the market place before deciding whether die protection resulting
     from a Registered Community Design is desirable; whereas it is therefore necessary to
     provide that disclosures of the design by the designer or his successor 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 assessing the novelty or the
     individual character of the design in question;
                                                   52
 ---pagebreak--- (20) whereas the exclusive nature of the right conferred by the Registered Community Design
     is consistent with its greater legal certainty; whereas it is appropriate that the Unregistered
     Community Design should, however, constitute arightonly to prevent copying and whereas
     this right should also extend to trade in products embodying infringing designs;
(21) whereas the enforcement of these rights is to be left to national laws and it is necessary
     therefore to provide for some basic uniform sanctions in all Member States; whereas these
     should make it possible, irrespective of the jurisdiction under which enforcement is sought,
     to stop the infringing acts, to obtain information about the infringer's source and distribution
     channels, and to seize infringing products;
(22) whereas a procedure for hearing actions concerning validity of a Registered Community
     Design in a single place would bring savings in costs and time compared with procedures
     involving different national courts; whereas, if the single place were to be a court in die
     country where the design right holder is domiciled, undue costs and difficulties could still
     be encountered by a challenger to validity from another country; whereas it is appropriate
     in these circumstances that the Community Design Office itself should hear direct actions
     raised by the Commission, Member States and third parties against validity;
(23) whereas in particular the intervention of the Commission and Member States would
     contribute significantly to maintaining consistency of practice as regards the requirements
     for protection;
(24) whereas it is necessary to provide safeguards including a right of appeal to a Board of
     Appeal, and ultimately to the Court of Justice of the European Communities; whereas such
     a procedure would assist the development of uniform interpretation of the requirements
     governing the validity of Community Designs;
(25) whereas it is a fundamental objective that the procedure for obtaining a Registered
     Community Design should present the minimum cost and difficulty to applicants, so as to
     make it readily available to small and medium-sized enterprises as well as to individual
     designers;
(26) whereas sectors of industry producing large numbers of possibly short-lived designs over
     short periods of time of which only some may be eventually commercialized will find
     advantage in the Unregistered Community Design; whereas there is also a need for these
     sectors to have easier recourse to the Registered Community Design; whereas the option of
     combining a number of designs in one multiple application would satisfy that need;
(27) whereas the normal publication following registration of a Community Design could in some
      cases destroy or jeopardize the success of a commercial operation involving the design;
     whereas the facility of an adjournment of publication for a reasonabletimeaffords a solution
      in such cases;
                                                  53
 ---pagebreak--- (28) whereas it is essential that the rights conferred by the Community Designs be enforced in
     an efficient manner throughout the territory of the Community; whereas specific rules
     concerning litigation based on Community Designs must be provided in order to guarantee
     such a result; whereas for infringement actions and for actions for a declaration of invalidity
     a limitation in the number of national courts having jurisdiction may promote the
     specialization of the judges; whereas to that end Member States should designate
     Community Design Courts;
(29) whereas the litigation system should avoid as far as possible "forum shopping"; whereas it
     is therefore necessary to establish clear rules of international jurisdiction;
(30) whereas this Regulation does not preclude die application to designs protected by
     Community Designs of other relevant laws of the Member States, such as those relating to
     design protection acquired by registration or those relating to unregistered design rights,
     trademarks, patents and utility models, unfair competition or civil liability;
(31) whereas, pending harmonization of copyright law, it is important to establish the principle
     of cumulation of protection under the Community Design and under copyright law, whilst
     leaving Member States free to establish the extent of copyright protection and die conditions
     under which such protection is conferred; whereas in the relationship between Member
     States, Community law already prohibits Member States from requiring mat protection under
     copyright law be afforded only subject to reciprocity; whereas it appears necessary that
     national legal provisions and practice incompatible herewith be abolished,
HAVE ADOPTED THIS REGULATION:
                                              TTIXEI
                                     GENERAL PROVISIONS
                                              Article 1
                                        Community Design
(1) Designs which comply with die conditions contained in this Regulation, hereinafter referred
    to as "Community Designs", shall be protected by a Community system of rights.
(2) A design shall be protected under the terms of this Regulation:
    (a) by an "Unregistered Community Design", without any formalities;
    (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 it invalid, save in respect of the whole Community. This principle and its
    implications shall apply unless otherwise provided in this Regulation.
                                                 54
 ---pagebreak---                                                Article 2
                                     Community Design Office
A Community Design Office, hereinafter referred to as "the Office", is hereby established.
                                              TITLED
                              TOE LAW RELATING TO DESIGNS
                                              Section 1
                                    Requirements for protection
                                               Article 3
                                             Definitions
For the purposes of this Regulation:
(a) "design" means the appearance of die whole or a part of a product resultingfromthe specific
    features of the lines, contours, colours, shape and/or materials of the product itself and/or its
    ornamentation;
(b) "product" means any industrial or handicraft item, including parts intended to be assembled
    into a complex item, sets or compositions of items, packaging, get-ups, graphic symbols and
    typographic typefaces, but excluding a computer program or a semi-conductor product.
                                               Article 4
                                        General requirements
(1) A design shall be protected by a Community Design to the extent that it is new and has an
    individual character.
(2) A design of a product which constitutes a part of a complex item shall only be considered
    to be new and to have an individual character in so far as the design applied to the part as
    such fulfils the requirement as to novelty and individual character.
                                               Article 5
                                               Novelty
(1) A design shall be considered to be new if no identical design has been made available to the
    public before the date of reference. Designs shall be deemed to be identical if their specific
    features differ only in immaterial details.
(2) A design shall be deemed to have been made available to the public if it has been published
    following registration or otherwise, exhibited, used in trade or otherwise disclosed. It shall
    not, however, be deemed to have been made available to the public for the sole reason that
    it has been disclosed to a third person under explicit or implicit conditions of confidentiality.
                                                  55
 ---pagebreak---                                                  Article 6
                                           Individual character
(1) A design shall be considered to have an individual character if the overall impression it
    produces on the informed user differs significantly from the overall impression produced on
     such a user by any design referred to in paragraph (2).
(2) To be considered for the purpose of application of paragraph (1), a design must be:
     (a) commercialized in the market place at the date of reference whether in die Community
         or elsewhere; or
     (b) published following registration as a Registered Community Design or as a design right
         of a Member State, provided that protection has not expired at the date of reference.
(3) In order to assess individual character, common features shall as a matter of principle be
     given more weight than differences and the degree of freedom of the designer in developing
     design shall be taken into consideration.
                                                 Article 7
                                            Date of reference
The date of reference within the meaning of the first sentence of Articles 5(1) and Article 6(2)
shall be:
(a) in the case of an Unregistered Community Design, the date on which the design for which
     protection is claimed was first made available to the public by the designer or his successor
     in tide or by a third person as a result of information provided or action taken by die designer
     or his successor in title;
(b) in the case of a Registered Community Design, the date of filing the application for
     registration or, if a priority is claimed, the date of priority.
                                                 Article 8
                                       Non-prejudicial disclosures
(1) If a design for which protection is claimed under a Registered Community Design has been
     made available to the public by the designer or his successor in tide or by a third person as
     a result of information provided or action taken by the designer or his successor in tide or
     as a consequence of an abuse in relation to the designer or his successor in title during the
     twelve-month period preceding the date of the filing of the application or, if a priority is
     claimed, the date of priority, such disclosure shall not be taken into consideration for the
     purpose of applying Articles 5 and 6.
 (2) The provisions of paragraph (1) shall not apply if the subject of the abusive disclosure is a
     design which has resulted in a Registered Community Design or a design right of a Member
      State.
                                                     56
 ---pagebreak---                                              Article 9
                 Non-arbitraiy technical designs, and designs of interconnections
(1) A Community Design right shall not subsist in a design to the extent that the realization of
    a technical function leaves no freedom as regards arbitrary features of appearance.
(2) A Community Designrightshall not subsist in a design to the extent that it must necessarily
    be reproduced in its exact form and dimensions in order to permit the product in which the
    design is incorporated or to which it is applied to be mechanically assembled or connected
    with another product.
(3) Notwithstanding paragraph (2) a Community Design right shall under the conditions set out
    in Articles 5 and 6 subsist in a design serving the purpose of allowing simultaneous and
    infinite or multiple assembly or connection of identical or mutually interchangeable products
    within a modular system.
                                            Article 10
                                Designs contrary to public policy
A Community Designrightshall not subsist in a design the exploitation or publication of which
is contrary to public policy or to accepted principles of morality.
                                             Section 2
                                  Scope and term of protection
                                            Article 11
                                       Scope of protection
(1) The scope of the protection conferred by a Community Design shall include any design which
    produces on the informed user a significantly similar overall impression.
(2) In order to assess the scope of protection, common features shall as a matter of principle be
    given more weight than differences and the degree of freedom of the designer in developing
    his design shall be taken into consideration.
                                            Article 12
         Commencement and term of protection of the Unregistered Community Design
A design which meets the requirements under Section 1 shall be protected without any formalities
by an Unregistered Community Design for a period of three years as from the date referred to
in Article 7(a).
                                                 57
 ---pagebreak---                                               Article 13
           Commencement and term of protection of the Registered Community 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 application. The term of protection may be extended in accordance with Article 53.
                                              Section 3
                                Entitlement 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) Where a design is developed by an employee in the execution of his duties or following die
     instructions given by his employer, the right to the Community Design shall vest in the
     employer, unless otherwise provided by contract.
                                              Article 15
                                        Plurality of designers
If two or more persons have jointly developed a design, therightto the Community Design shall
vest in them joindy.
                                              Article 16
                     Claims relating to the entitlement to a Community Design
(1) If therightto an Unregistered Community Design is claimed by, or a Registered Community
     Design has been registered in the 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 have the Community Design transferred to him.
 (2) Where a person is jointly entitled to a Community Design, that person may, in accordance
     with paragraph (1), claim to be made a joint holder.
 (3) In the case of a Registered Community Design, legal proceedings to seek the transfer under
     paragraph (1) may be instituted only within a period of not more than two years after the date
     of publication of the Registered Community Design. This provision shall not apply if die
      holder of the Registered Community Design knew that he was not entitled to it at the time
      when such Design was registered or transferred to him.
 (4) In case of a Registered Community Design, die fact that legal proceedings under
      paragraph (1) have been instituted shall be entered in the Register. Entry shall also be made
      of die final decision in, or of any other termination of, the proceedings.
                                                   58
 ---pagebreak---                                                Article 17
            Effects of a judgment 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 Article 16(1), licences and otherrightsshall lapse upon die
    entering in the Register of the person entitled.
(2) If, before the institution of the legal proceedings under Article 16(1) has been registered, the
    holder of the Registered Community Design or a licensee has exploited the design within the
    Community or made serious and effective preparations to do so, he may continue such
    exploitation 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 be granted for a reasonable period and upon reasonable terms.
(3) Paragraph (2) shall not apply if therightholder or the licensee was acting in bad faith at the
    time when he began to exploit the design or to make preparations to do so.
                                               Article 18
                           Presumption in favour of the registered person
The person in whose name the application for a Registered Community Design was filed shall
be deemed to be the person entitled in any proceedings before the Office.
                                               Article 19
                                    Specific rights of die designer
The designer shall have die right, as against the applicant for or the holder of a Registered
Community Design, to be cited as such before die Office or in the Register. If the design is the
result of team-work, the indication of the team may replace the citation of die individual
designers.
                                               Section 4
                                  Effects of the Community Design
                                               Article 20
                     Rights conferred by die Unregistered Community Design
An Unregistered Community Design shall confer on its holder therightto prevent any third party
not having his consentfromcopying the design or from using a design included within the scope
of protection of the Unregistered Community Design and resulting from such copying. The
aforementioned use shall, in particular, cover the making, offering, putting on the market or
using of a product in which such a design is incorporated or to which it is applied, and the
importing, exporting or stocking of such a product for those purposes.
                                                   59
 ---pagebreak---                                              Article 21
                      Rights conferred by the Registered Community Design
(1) A Registered Community Design shall confer on its holder the exclusive right to use the
    design and to prevent any third party not having his consent from using a design included
    within the scope of protection of the Registered Community Design. The aforementioned use
    shall, in particular, cover the making, offering, putting on the market or using of a product
    in which such a design is incorporated or to which it is applied, and the importing, exporting
    or stocking of such a product for those purposes.
(2) Notwithstanding paragraph (1) a Registered Community Design whose publication is deferred
    in accordance with Article 52 shall confer on its holder the rights referred to in Article 20.
                                             Article 22
                    Limitation of the rights conferred by a Community Design
(1) The rights conferred by a Community Design shall not extend to:
    (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 trade practice 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 extend to:
    (a) die 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 23
                    Use of a Registered Community Design for repair purposes
The rights conferred by a Registered Community Design shall not be exercised against third
parties who, after three years from thefirstputting on the market of a product incorporating the
design or to which the design is applied, use the design under Article 21, provided that:
(a) die product incorporating the design or to which the design is applied is a part of a complex
    product upon whose appearance the protected design is dependent;
(b) the purpose of such a use is to permit the repair of the complex product so as to restore its
    original appearance; and
(c) the public is not misled as to the origin of the product used for the repair.
                                                 60
 ---pagebreak---                                                Article 24
                                              Exhaustion
The rights conferred by a Community Design shall not extend to acts relating to a product in
which a design included within the scope of protection of die Community Design is incorporated
or to which it is applied, when the product has been put on the market in the Community by the
holder of the Community Design or with his consent.
                                               Article 25
                 Rights of prior use in respect of a Registered Community Design
Therightsconferred by a Registered Community Design shall not become effective against any
third person who can establish that:
(a) before the date of filing the application; or
(b) if a priority is claimed, before the date of priority,
he has, in good faith, commenced use within the Community - or has made serious preparations
to that end - of a design included within the scope of protection of the Registered Community
Design, which has been developed independendy of the latter and which at such a date had not
yet been made available to die public. Such a person shall be entided to exploit the design for
the needs of the undertaking in which the use was effected or anticipated. That right cannot be
transferred separately from the undertaking.
                                               Section 5
                                               Invalidity
                                               Article 26
                                       Declaration of invalidity
(1) A Community Design may only be declared invalid by a Community Design Court.
    A Registered Community Design may also be declared invalid by the Office in accordance
    with the procedure in Tide VII.
(2) An application for a declaration of invalidity may be submitted even after the Community
    Design has lapsed or has been surrendered.
                                               Article 27
                                         Grounds for invalidity
(1) A Community Design may be declared invalid only in the following cases:
    (a) if the design protected does not fulfil the requirements under Article 4; or
    (b) to the extent that its specific technical and/or interconnecting features are not eligible for
        protection under Article 9(1) or (2); or
                                                   61
 ---pagebreak---     (c) to the extent that its exploitation or publication is contrary to public policy or to accepted
        principles of morality; or
    (d) if the right holder in the Community Design is, by virtue of a court decision, not entitled
        under Articles 14 and 15.
(2) A Community Design may also be declared invalid if a conflicting design which has been
    made available to the public after the date of reference within the meaning of Article 7(a) or
    (b), as the case may be, is protected from a date prior to the said date of reference by a
    Registered Community Desipi or a registered design right of one or more Member States, or
    an application for such a right.
(3) By derogation from Article 1(3):
    (a) in the case specified in paragraph (l)(c), invalidity shall be declared only in respect of the
        Member State or States where die ground for invalidation obtains;
    (b) in the case specified in paragraph (2), to the extent that the rights in question, or
        applications for such rights, have effect only in respect of a Member State or States,
        invalidity shall be declared only in respect of such a Member State or States.
                                               Article 28
                                          Effects of invalidity
(1) A Community Design which has been declared invalid shall be deemed not to have had, from
    the outset, the effects specified in this Regulation.
(2) Subject to the national provisions relating either to claims for compensation for damage
    caused by negligence or lack of good faith on the part of the holder of the Community
    Design, or to unjust enrichment, 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 die invalidity decision, in so far as it has been performed
        before the decision; however, repayment, to an extent justified by the circumstances, of
        sums paid under the relevant contract, may be claimed on grounds of equity.
                                               TTTLE III
                     COMMUNITY DESIGNS AS OBJECTS OF PROPERTY
                                               Article 29
                    Dealing with Community Designs as national design rights
(1) Save where Articles 30 to 34 provide otiierwise, 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:
                                                   62
 ---pagebreak---     (a) the holder has his seat or his domicile on the relevant date; or
    (b) where subparagraph (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 (l)(a)
    or, where that provision does not apply, the condition under paragraph (l)(b), the Member
    State referred to in paragraph (1) shall be determined:
    (a) in the case of an Unregistered Community Design, by reference to the relevant joint
        holder designated by them by common agreement;
    (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 are mentioned 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 Office is situated.
                                              Article 30
                                               Transfer
(1) A Community Design may be transferred.
(2) The transfer of a Registered Community Design shall be subject to the following provisions:
    (a) At die request of one of die 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 die rights arising from die Registered Community Design.
    (c) Where there are time limits to be observed in dealings with the Office, the successor in
        tide may make the corresponding statements to the Office once the request for registration
        of the transfer has been received by the Office.
    (d) All documents which require notification to the holder of the Registered Community
        Design shall be addressed to the person registered as holder or his representative, if one
        has been appointed.
                                              Article 31
                         Rights in rem on a Registered Community Design
(1) A Registered Community Design may be given as security or be the subject ofrightsin rem.
(2) At the request of one of the parties,rightsmentioned in paragraph (1) shall be entered in the
    Register and published.
                                                  63
 ---pagebreak---                                             Article 32
                      Levy of execution on a Registered Community Design
(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,
    die courts and authorities of the Member State determined in accordance with Article 29 shall
    have exclusive jurisdiction.
(3) On request of one of the parties, levy of execution shall be entered in the Register and
    published.
                                            Article 33
                                  Bankruptcy or like proceedings
(1) Until such time as common rules for the Member States in this field enter into force, die only
    Member State in which a Community Design may be involved in bankruptcy or like
    proceedings shall be that in which such proceedings are first brought under national law or
    conventions applicable in this field.
(2) Where a Registered Community Design is involved in bankruptcy or like proceedings, an
    entry to that effect shall be made in the Register at the request of die competent national
    authority and shall be published.
                                            Article 34
                                            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 the provisions of the licensing contract, die licensee may bring
    proceedings for infringement of a Community Design only if therightholder consents thereto.
    However, the holder of an exclusive licence may bring such proceedings if the right holder
    in the Community Design, having been given notice to do so, does not himself bring
    infringement proceedings within an appropriate period.
(3) A licensee shall, for the purpose of obtaining compensation for damage suffered by him, be
    entitled to intervene in an infringement action brought by the right holder in a Community
    Design.
(4) In the case of a Registered Community Design, the grant or transfer of a licence in respect
    of such right shall, at the request of one of the parties, be entered in die Register and
    published.
                                                64
 ---pagebreak---                                               Article 35
                                    Effects vis-à-vis third parties
(1) The effects vis-à-vis third parties of the legal acts referred to in Articles 30, 31, 32 and 34
    shall be governed by the law of the Member State determined in accordance with Article 29.
(2) However, as regards Registered Community Designs, legal acts referred to in Articles 30, 31
    and 34 shall have effect only vis-à-vis third parties in all the Member States after entry in the
    Register. Nevertheless, such an act, before it is so entered, shall have effect vis-à-vis third
    parties who have acquiredrightsin the Registered Community Design after the date of that
    act but who knew of die act at the date on which the rights were acquired.
(3) Paragraph (2) shall not apply to a person who acquires the Registered Community Design or
    a right relating to it by way of transfer of the whole of the undertaking or by any other
    universal succession.
(4) Until such time as common rules for the Member States in the field of bankruptcy enter into
    force, the effects vis-à-vis third parties of bankruptcy or like proceedings shall be governed
    by the law of die Member State in which such proceedings are first brought under national
    law or the conventions applicable in this field.
                                              Article 36
                       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 die Community, as a national design right of
    the Member State determined in accordance with Article 29.
(2) Articles 30 to 35 shall apply mutatis mutandis to applications for Registered Community
    Designs. Where the effect of one of these provisions is conditional upon an entry in the
    Register, that formality shall have to be performed upon registration of the resulting
    Registered Community Design.
                                                  65
 ---pagebreak---                                              TITLE IV
             THE APPUCATION FOR A REGISTERED COMMUNITY DESIGN
                                             Section 1
                  Filing of applications and the conditions which govern them
                                             Article 37
                                      Filing of applications
(1) An application for a Registered Community Design shall be filed, at die option of the
    applicant:
(a) at die Office; or
(b) if the law of the Member State so permits, at the central industrial property office of a
    Member State or at die Benelux Design Office.
(2) An application filed at the central industrial property office of a Member State or at die
    Benelux Design Office shall have the same effect as if it had been filed on the same date at
    the Community Design Office.
                                             Article 38
                                   Forwarding of the application
(1) Where the application is filed at the central industrial property office of a Member State or
    at die Benelux Design Office, that office shall take all steps to forward the application to the
    Office within two weeks after filing. It may charge die applicant a fee which shall not exceed
    the administrative costs of receiving and forwarding the application.
(2) As soon as the Office has received an application which has been forwarded by a central
    industrial property office or by the Benelux Design Office, it shall inform the applicant
    accordingly, indicating die date of its receipt at the Office.
(3) No less than ten 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 39
                        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.
                                                 66
 ---pagebreak--- (2) 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 52, the representation of the
    design may be replaced by a specimen or a sample of the product in which the design is
    incorporated or to which it is applied.
(3) In addition, the application may contain:
    (a) a description explaining the representation;
    (b) an indication of the products in which the design is intended to be incorporated or to
         which it is intended to be applied;
    (c) the classification of the products in which the design is intended to be incorporated or to
         which it is intended to be applied according to class and sub-class;
    (d) a specimen or a sample of the product in which the design reproduced in the
         representation is incorporated or to which it is applied;
    (e) a request for deferment of publication of the application in accordance with Article 52.
(4) The application shall cite the designer or indicate the team of designers. If the applicant is
    not the designer, or not the sole designer, the entry shall contain a statement indicating the
    origin of therightto the Community Design.
(5) The application shall be subject to the payment of the registration fee and the publication fee.
    Where a request for deferment under paragraph (3)(e) is filed, the publication fee shall be
    replaced by the fee for deferment of publication.
(6) The application shall comply with the conditions laid down in the Implementing Regulation.
                                              Article 40
                                        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 intended
    to be applied all belong to die same sub-class, or to die same set or composition of items.
(2) Besides the fees referred to in Article 39(5), the multiple application shall be subject to
    payment of an additional registration fee and an additional publication fee. Where the
     multiple application contains a request for deferment of publication, the additional publication
     fee shall be replaced by the additional fee for deferment of publication. 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.
                                                  67
 ---pagebreak---                                               Article 41
                                            Date of filing
The date of filing of an application for a Registered Community Design shall be the date on
which documents containing die information specified in Article 39(1) or (2) are filed with the
Office by the applicant, or, if the application has been filed with the central industrial property
office of a Member State or with the Benelux Design Office, with that office subject to payment
of the fees referred to in Article 39(5) and, where appropriate, Article 40(2) within a period of
two months of the filing of the abovementioned documents.
                                              Article 42
                                            Classification
For the purpose of this Regulation, use shall be made of the classification for designs provided
for in the Annex to the Agreement Establishing an International Classification for Industrial
Designs, signed at Locarno on 8 October 1968.
                                              Section 2
                                               Priority
                                              Article 43
                                          Right of priority
(1) A person who has duly filed an application for a design in or for any State party to the Paris
    Convention for the Protection of Industrial Property, hereinafter referred to as "the Paris
    Convention", or his successors intitle,shall enjoy, for die purpose of filing an application for
    a Registered Community Design in respect of the same design, a right of priority of six
    months from the date of filing of the first application.
(2) Every filing that is equivalent to a lawful national filing under the national law of the State
     where it took place or under bilateral or multilateral agreements shall be recognized as giving
    rise to arightof priority.
(3) Lawful national filing means any filing that is sufficient to establish the date on which the
     application was filed, whatever may be the outcome of the application.
(4) A subsequent application for a design which was the subject of a previous first application,
     and which is filed in or in respect of the same State, shall be considered as the first
     application for the purpose of determining priority, provided that, at die date of the filing of
     the subsequent application, the previous application has been withdrawn, abandoned or
     refused without being open to public inspection and without leaving any right outstanding,
     and has not served as a basis for claiming priority. The previous application may not
    thereafter serve as a basis for claiming arightof priority.
                                                  68
 ---pagebreak--- (5) If the first filing has been made in a State which is not a party to the Paris Convention,
    paragraphs (1) to (4) shall apply only in so far as that State, according to published findings,
    grants, on the basis of a filing made at the Office and subject to conditions equivalent to
    those laid down in this Regulation, arightof priority having equivalent effect.
                                               Article 44
                                           Claiming priority
An applicant for a Registered Community Design desiring to take advantage 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 procedure of the Office, the latter may
require a translation of the previous application in one of the languages of procedure of the
Office. The procedure to be followed in carrying out this provision is laid down in the
Implementing Regulation.
                                               Article 45
                                        Effect of priority right
The effect of therightof priority shall be that the date of priority shall count as the date of die
filing of the application for a Registered Community Design for the purpose of
Articles 5, 6, 8, 25 and 27(2).
                                               Article 46
                        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 to a lawful national filing, including where appropriate
the priority claimed for the said application.
                                               Article 47
                                          Exhibition priority
(1) If an applicant for a Registered Community Design has displayed products in which the
     design is incorporated, or to which it is applied, at an official or officially recognized
     international exhibition falling within the terms of the Convention on International Exhibitions
     signed in 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 from the date of the first display of such
     products, claim arightof priority from that date within the meaning of Article 45.
(2) An applicant who wishes to claim priority pursuant to paragraph (1) must file evidence of the
     display of the products in which the design is incorporated or to which it is applied under the
     conditions laid down in the Implementing Regulation.
 (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 43.
                                                   69
 ---pagebreak---                                              TTTLE V
                                 REGISTRATION PROCEDURE
                                             Article 48
                              Examination as to formal requirements
(1) The Office shall refuse any application for a Registered Community Design the subject of
    which is obviously not covered by the definition in Article 3.
(2) The Office shall examine whether:
    (a) the application complies with the conditions laid down in Article 39(1) and (2) for the
        accordance of a date of filing;
    (b) the application complies with the other conditions laid down in Article. 39 and, in the case
        of a multiple application, Article 40;
    (c) die requirements concerning the claim to priority are satisfied, if a priority is claimed.
                                             Article 49
                                     Remediable deficiencies
(1) Where the application does not satisfy the requirements referred to in Article 48(2)(a) and (b),
    the Office shall request the applicant to remedy the deficiencies or the default on payment
    of the fees within the prescribed period.
(2) If the applicant complies with the Office's request in due time, the Office shall allow as the
    date of filing the date on which the deficient application was originally filed. If, however,
    compliance with the Office's request concerns deficiencies relating to the conditions referred
    to in Article 39(1) or (2), the Office shall allow as date of filing the date on which the
    deficiencies are remedied.
(3) If the deficiencies or the default in payment established pursuant to paragraph (1) are not
    remedied within the prescribed period, the Office shall refuse the application.
(4) Failure to satisfy the requirements concerning the claim to priority shall result in the loss of
    therightof priority for the application.
                                             Article 50
                                            Registration
An application which has been accorded a date of filing shall forthwith be registered as a
Registered Community Design. The registration shall bear the date on which the date of filing
was accorded.
                                                 70
 ---pagebreak---                                               Article 51
                                              Publication
Upon registration, the Office shall publish the Registered Community Design in the Community
Design Bulletin as mentioned in Article 77(a). The publication shall contain:
(a) information identifying therightholder in the Registered Community Design;
(b) the number and the date of filing and, if a priority has been claimed, the priority date;
(c) the citation of the designer or the indication of the team;
(d) the reproduction of the representation of the design;
(e) where a specimen or a sample has been filed, a reference to such filing;
(f) any other particulars prescribed by the Implementing Regulation.
                                              Article 52
                                      Deferment of publication
(1) The applicant for a Registered Community Design may request, when filing the application,
    that the publication of the Registered Community Design be deferred for a period not
    exceeding 30 monthsfromthe date of filing die application or, if a priority is claimed, from
    the date of priority.
(2) Upon such request, where the application has been accorded a date of filing, the Registered
    Community Design shall be registered , but neither the representation of the design nor any
    file relating to the application shall, subject to Article 78(2), be open to public inspection.
(3) The Office shall publish in the Community Design Bulletin a mention of the deferment of the
    publication of the Registered Community Design. The mention shall be accompanied by
    information identifying at least therightholder in the Registered Community Design, the date
    of filing the application, die length of the period for which deferment has been requested and
    any other particulars prescribed by the 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 inspection all the entries in the Register and the file relating
    to the application and shall publish the Registered Community Design in the Community
    Design 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 under Article 39(2), therightholder has filed with
         the Office a representation of the design suitable for reproduction.
      If the right holder fails to comply with these requirements, the Registered Community
      Design shall, unless surrendered in accordance with the provisions of Article 55, be deemed
      from the outset not to have had the effects specified in this Regulation.
                                                   71
 ---pagebreak--- (5) In the case of a multiple application, the provisions of this Article may be applied to only
    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
    the person against whom the action is brought.
(7) References in this Regulation to the date of publication of the Registered Community Design
     shall be understood, in the case of a Registered Community Design subject to deferment of
    publication, to mean the date on which the Office performs the act referred to in
     paragraph (4).
                                               TTTLE VI
           TERM OF PROTECTION OF THE REGISTERED COMMUNTTV DESIGN
                                               Article 53
                                          Term of protection
The term of protection of the Registered Community Design shall be five years as from the date
of filing of die application. It may be renewed pursuant to Article 54 for periods of five years
each up to a total term of 25 years as from the date of filing of the application.
                                               Article 54
                                                Renewal
(1) Registration of the Registered Community Design shall be renewed at the request of the right
     holder or of any person expressly authorized by him, provided that the renewal fee has been
     paid.
(2) The Office shall inform the right holder in the Registered Community Design, and any person
     having a registered right in respect of the Registered Community Design, of the expiry of the
     registration in good time before the said expiry. Failure to give such information shall not
     involve the responsibility of die Office.
 (3) The request for renewal shall be submitted and the renewal fee paid within a period of six
     months before the last day of the month in which protection ends. Failing this, the request
     may be submitted and die fee paid within a further period of six months from the day referred
     to in the first sentence, provided that an additional fee is paid within this further period.
 (4) Renewal shall take effect from die day following the date on which the existing registration
     expires. The renewal shall be registered.
                                                    72
 ---pagebreak---                                              TITLE VU
     SURRENDER AND INVALIDITY OF THE REGISTERED COMMUNITY DESIGN
                                             Article 55
                                              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 registered.
(2) Surrender shall be registered only with the agreement of the holder of a right entered in the
    Register. If a licence has been registered, surrender shall be entered in the Register only if
    the right holder in the Registered Community Design proves that hé has informed the licensee
    of his intention to surrender; this entry shall be made on expiry of the period prescribed by
    the Implementing Regulation.
                                             Article 56
                             Application for a declaration of invalidity
(1) The Commission, Member States and any other namral or legal person may submit to the
    Office an application for a declaration of invalidity of a Registered Community Design;
    however, in the case envisaged in Article 27(1 )(d), the application may be filed only by the
    person or persons entided and, in the case envisaged in Article 27(2), only by the right holder
    of the earlier right.
(2) The application shall be filed in a written reasoned statement. It shall not deem to have been
    filed until the fee has been paid.
(3) The application for a declaration of invalidity shall not be admissible if an application relating
    to the same subject matter and cause of action, and involving die same parties, has been
    adjudicated on by a Community Design Court and has acquired the authority of a final
    decision.
                                             Article 57
                                   Examination of the application
(1) If the application for a declaration of invalidity is admissible, the Office shall examine
    whether the grounds for invalidity referred to in Article 27 prejudice the maintenance of the
    Registered 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 period to be fixed by the Office, on communications by die other
    parties or those issued by itself.
(3) The decision declaring the Registered Community Design invalid shall be entered in the
    Register upon becoming final.
                                                  73
 ---pagebreak---                                              Article 58
            Participation in the proceedings of the alleged infringer, the Commission
                                      and the Member States
(1) If an application for a declaration of invalidity of a Registered Community Design is filed,
    and as long as no final decision has been taken by an Invalidity Division, any third party who
    proves that proceedings for infringement of the same design have been instituted against him
    may intervene in die invalidity proceedings, if he gives notice of intervention within three
    months of the date on which the infringement proceedings were instituted. The same shall
    apply in respect of any third party who proves both that the right holder of the Design has
    requested that he cease an alleged infringement of the Design and that he has instituted
    proceedings for a court ruling that he is not infringing the Design.
(2) The Commission and Member States shall have the right to be joined as parties to the
    proceedings in accordance with the provisions hereon set out in the Implementing Regulation.
(3) Notice of intervention or 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 the fee referred to in
    Article 56(2) has been paid. Thereafter the intervention or the request shall, subject to any
    exceptions laid down in the Implementing Regulation, be treated as an application for a
    declaration of invalidity.
                                            TITLE V m
                        APPEALS FROM DECISIONS OF THE OFFICE
                                             Article 59
                                    Decisions subject to appeal
(1) An appeal shall lie from decisions of the Formalities Examination Divisions, Design
    Administration and Legal Division and Invalidity Divisions. It shall have suspensive effect.
(2) A decision which does not terminate proceedings as regards one of the parties can only be
    appealed against if joined with the final decision, unless the decision allows separate appeal.
                                             Article 60
                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 appeal proceedings as of right.
                                                 74
 ---pagebreak---                                              Article 61
                                  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 not be deemed to have been filed
until after the appeal fee has been paid. Within four months after the date of notification of the
decision, a written statement setting out the grounds of appeal must be filed.
                                             Article 62
                                       Interlocutory revision
(1) If the department whose decision is contested considers the appeal to be admissible and well
    founded, it shall amend its decision. This shall not apply where the appellant is opposed by
    another party to the proceedings.
(2) If the decision is not amended within one month after receipt of the statement of grounds, the
    appeal shall be remitted to the Board of Appeal without delay and without comment as to its
    merits.
                                             Article 63
                                      Examination of appeals
(1) If the appeal is admissible, the Board of Appeal shall examine whether the appeal is to be
    allowed.
(2) In die examination of the appeal, the Board of Appeal shall invite the parties, as often as
    necessary, to file observations, within a period to be fixed by the Board of Appeal, on
    communications from the other parties or those issued by itself.
                                             Article 64
                                  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 Appeal may either exercise any power within the competence
    of die department which was responsible for the decision appealed against or remit die case
    to that department for further action.
(2) If the Board of Appeal remits the case for further action to the department whose decision
    was appealed against, that department shall be bound 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 as from the date of expiration
    of the period referred to in Article 65(5) or, if an action has been brought before the Court
    of Justice within that period, as from the date of dismissal of such action.
                                                 75
 ---pagebreak---                                              Article 65
                                 Actions before the Court of Justice
(1) Actions may be brought before die Court of Justice against decisions of the Office taken by
    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 of the 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 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 die 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.
                                             TTTLEIX
                                PROCEDURE BEFORE THE OFFICE
                                              Section 1
                                         General provisions
                                             Article 66
                         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 parties concerned have had an opportunity to present their
comments.
                                              Article 67
                      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 invalidity, 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.
                                                  76
 ---pagebreak---                                             Article 68
                                         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 request of any party to the proceedings.
(2) Oral proceedings, including delivery of the decision, shall be public, unless the Office decides
    otherwise in cases where admission of the public could have serious and unjustified
    disadvantages, in particular for a party to the proceedings.
                                            Article 69
                                        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 information;
    (d) hearing the witnesses;
    (e) opinions by experts;
    (f) statements in writing, sworn or affirmed or having a similar effect under the law of die
         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, wimess or expert to give evidence orally, it
    shall issue a summons to the person concerned to appear before it
(4) The parties shall be informed of the hearing of a wimess or expert before the Office. They
    shall have therightto be present and to put questions to the wimess or expert.
                                             Article 70
                                            Notification     /
The Office shall, as a matter of course, notify those concerned of decisions and summonses and
of any notice or other communication from which a time limit is reckoned, or of which those
concerned must be notified under other provisions of this Regulation or of the Implementing
Regulation, or of which notification has been ordered by the President.
                                                 77
 ---pagebreak---                                              Article 71
                                      Restitutio in integrum
(1) The applicant for or right 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 unable to observe atimelimit in dealings with the Office shall, upon
    application, have his rights re-established if the non-observance in question has the 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 die year immediately following the expiry of
    the infringed time limit. In the case of non-submission of the request for renewal of
    registration or of non-payment of a renewal fee, the further period of six months provided for
    in the second sentence of Article 54(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 of the Office empowered to decide on the omitted act shall decide upon die
    application.
(5) The provisions of this Article shall not be applicable to the time limits referred to in
    paragraph (2) and in Article 43(1).
(6) Where the applicant for orrightholder in a Registered Community Design has hisrightsre-
    established, he may not invoke hisrightsvis-à-vis a third party who, in good faith, during the
    period between die loss of rights in the application or in the Registered Community Design
    and publication of the mention of re-establishment of those rights, has put products on die
    market in which a design is incorporated or to which it is applied, which is comprised within
    the scope of protection of the Registered Community Design.
(7) A third party who may avail himself of the provisions of paragraph (6) may bring third party
    proceedings against the decision re-establishing therightsof the applicant for orrightholder
    in the Registered Community Design within a period of two months as from die date of
    publication of the mention of re-establishment of those rights.
(8) Nothing in this Article shall limit therightof 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 such State.
                                                  78
 ---pagebreak---                                               Article 72
                                   Reference to general principles
In the absence of procedural provisions in this Regulation, the Implementing Regulation, the Fees
Regulations or the Rules of Procedure of the Boards of Appeal, the Office shall take into account
the principles of procedural law generally recognized in the Member States.
                                              Article 73
                                 Termination of financial obligations
(1) Rights of the Office to payment of a fee shall be extinguished after 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 extinguished 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 fee and, in the case covered by paragraph (2),
     by a reasoned claim in writing. 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 therighthave begun; in such case the period shall
     end no earlier than one year after the judgment has acquired the authority of afinaldecision.
                                               Section 2
                                                 Costs
                                              Article 74
                                          Allocation of costs
(1) The losing party in proceedings for a declaration of invalidity of a Registered Community
     Design or appeal proceedings shall bear the fees incurred by the other party as well as all
     costs incurred by him essential 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 in the 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) The party who terminates the proceedings by surrendering the Registered Community Design
     or by not renewing its registration or by withdrawing the application for a declaration of
     invalidity or the appeal, shall bear die 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 in the discretion of the
     Invalidity Division or Board of Appeal.
                                                   79
 ---pagebreak--- (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) to (4), the body concerned shall
    take note of that agreement.
(6) On request, the registry of the Invalidity Division or Board of Appeal shall fix the amount
    of the costs to be paid pursuant to the preceding 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 75
                       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 order for its enforcement shall be appended to the
    decision, without any other formality than verification of the authenticity of the decision, by
    the national authority which the government of each Member State shall designate for this
    purpose and shall make known to die Office and to die Court of Justice.
(3) When these formalities have been completed on application by the party concerned, die latter
    may proceed to enforcement in accordance with the national law, by bringing the matter
    direcdy before the competent 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 improperly.
                                             Section 3
                     Information of the public and of the official authorities
                                       of the Member States
                                             Article 76
                                              Register
The Office shall keep a register to be known as the Community Design Register, which shall
contain those particulars of which die registration is provided for by this Regulation or by the
Implementing Regulation. The Register shall be open to public inspection, except to the extent
that Article 52(2) provides otherwise in relation to entries relating to Registered Community
Designs subject to deferment of publication.
                                                 80
 ---pagebreak---                                               Article 77
                                       Periodical publications
The Office shall periodically publish:
(a) a "Community Design Bulletin" containing entries open to public inspection in the Register
    as well as other particulars the publication of which is prescribed by this Regulation or by
    the Implementing Regulation;
(b) an "Official Journal of the Community Design Office", containing notices and information
    of a general character issued by the President of the Office, as well as any other information
    relevant to this Regulation or its implementation.
                                              Article 78
                                          Inspection of files
(1) The files relating to applications for Registered Community Designsr which have not yet been
    published or the files relating to Registered Community Designs which are subject to
    deferment of publication in accordance with Article 52 or which, being subject to such
    deferment, have been surrendered before or on the expiry of that period, shall not be made
    available for inspection without the consent of die applicant for or the right holder in the
    Registered Community Design.
(2) Any person who can establish a legitimate interest may inspect a file without die consent of
    the applicant for orrightholder in the Registered Community Design prior to the publication
    or after the surrender of die latter in the case provided for under paragraph (1). This shall in
    particular apply if the interested person proves that the applicant for, or the right holder, in
    a Registered Community Design has taken steps with a view to invoking against him the right
    under die Registered 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 accordance with the provisions of the Implementing
    Regulation.
                                              Article 79
                                 Administrative and legal cooperation
Unless otherwise provided in this Regulation or in national laws, the Office and the courts or
 authorities of the Member States shall on request give assistance to each other by communicating
information or opening files for inspection. Where the Office opens files to inspection by courts,
Public Prosecutors' Offices or central industrial property offices, the inspection shall not be
 subject to the restrictions laid down in Article 78.
                                                   81
 ---pagebreak---                                               Article 80
                                     Exchange of publications
(1) The Office and the central industrial 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 of
    charge.
(2) The Office may conclude agreements relating to the exchange or supply of publications.
                                              Section 4
                                           Representation
                                              Article 81
                                General principles of representation
(1) Subject to the provisions of paragraph (2), no person shall be compelled to be represented
    before the Office.
(2) Without prejudice to the second sentence of paragraph (3), natural or legal persons not having
    either their domicile or their principal place of business or a real and effective industrial or
    commercial establishment in the Community must be represented before the Office in
    accordance with Article 82(1) in all proceedings before the Office established by this
    Regulation, other than in filing an application for a Registered Community Design.
(3) Natural or legal persons having their domicile or principal place of business or a real and
    effective industrial or commercial establishment in die Community may be represented before
    the Office by one of their employees, who must file with it a signed authorization for
    inclusion in the files, the details of which are set out in the Implementing Regulation. An
    employee of a legal person to which this paragraph applies may also represent other legal
    persons which have economic connections with thefirstlegal person, even if those other legal
    persons have neither their domicile nor their principal place of business nor a real and
    effective industrial or commercial establishment within the Community.
                                             Article 82
                                    Professional representatives
(1) Representation of natural or legal persons before the Office 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 representative in industrial property matters; or
    (b) professional representatives whose names appear on the list maintained for this purpose
        by the Office.
    Representatives acting before the Office must file with it a signed authorization for inclusion
    on die files, the details of which are set out in the Implementing Regulation.
                                                  82
 ---pagebreak--- (2) Any natural person who fulfils the following conditions may be entered on the list of
    professional representatives:
    (a) he must have his place of business or employment in the Community;
    (b) he must be entitled to represent namral or legal persons:
         - in patent matters before the European Patent Office, or
         - in trademark matters before the Community Trade Mark Office, or
         - in industrial property matters, including design matters, before the central industrial
           property office of the Member State in which he has his placer of business or
           employment. Where, in that State, the entitlement is not conditional upon die
           requirement of special professional qualifications, persons applying to be entered on the
           list who act in industrial property matters, including design matters, before the central
           industrial property office of the said State must have habitually so acted for at least five
           years. However, persons whose professional qualification to represent-natural or legal
           persons in industrial property matters, including design matters, before die central
           industrial property office of one of the Member States is officially recognized in
           accordance with die regulations laid down by such State, shall not be subject to the
           condition of having exercised the profession.
(3) Entry shall be effected upon request, accompanied by a certificate furnished by the central
     industrial property office of the Member State concerned, or by the European Patent Office
     or by the Community Trade Mark Office, which must indicate that the conditions laid down
     in paragraph (2) are fulfilled.
(4) The President of die Office may grant exemption from the requirement of the second sentence
     of paragraph (2Kb), third indent, if the applicant furnishes proof that he has acquired the
     requisite qualification in some other way.
(5) The conditions under which a person may be removed from the list of professional
     representatives shall be laid down in the Implementing Regulation.
                                                TTTLEX
 JURISDICTION AND PROCEDURE IN LEGAL ACTIONS RELATING TO COMMUNTTV
                                               DESIGNS
                                                Section 1
                                     Jurisdiction and Enforcement
                                                Article 83
                  Application of the Convention on Jurisdiction and Enforcement
 (1) Unless otherwise specified in this Regulation, the Convention on Jurisdiction and the
     Enforcement of Judgments in Civil and Commercial Matters, signed in Brussels
     on 27 September 1968, as amended by the Conventions on the Accession to that Convention
     of the States acceding to the European Communities, the whole of which Convention and of
      which Conventions of Accession are hereinafter referred to as the "Convention on Jurisdiction
                                                    83
 ---pagebreak---     and Enforcement", shall apply to proceedings relating to Community Designs and applications
    for Registered Community Designs, as well as to proceedings relating to actions on the basis
    of Community Designs and national design rights enjoying simultaneous protection.
(2) In the event of proceedings in respect of the actions and claims referred to in Article 85:
    (a) Article 2, Article 4, Article 5 No 1, 3, 4 and 5 and Article 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 86(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 to persons who do not have a domicile in any
        Member State but have an establishment therein.
(3) Article 16 No 3 of the Convention on Jurisdiction and Enforcement shall be complied with
    by bringing proceedings in respect of an action or claim referred to in Article 85(c) and (d)
    before any Community Design Court having jurisdiction under Article 86.
                                               Section 2
            Disputes concerning the infringement and validity of Community Designs
                                               Article 84
                                     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 second instance (Community Design Courts), which
    shall perform the functions assigned to them by this Regulation.
(2) Each Member State shall communicate to the Commission within three years of the entry into
    force of this Regulation a list of Community Design Courts, indicating their names and their
    territorial jurisdiction.
(3) Any change made after communication of the list referred to in paragraph (2) in the number,
    die names or territorial jurisdiction of the Community Design Courts shall be notified without
    delay by the Member State concerned to the Commission.
(4) The information referred to in paragraphs (2) and (3) shall be notified by the Commission to
    the Member States and published in the Official 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 resulting from an action covered by Article 85 for which the
    courts of that State have jurisdiction under Article 86, 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.
                                                   84
 ---pagebreak---                                                Article 85
                              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 Community Designs;
(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 86
                                        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 83, proceedings in respect of the
     actions and claims referred to in Article 85 shall be brought in die courts of the Member State
     in which the defendant is domiciled or, if he is not domiciled in any of the Member States,
     in which he has an establishment.
(2) If the defendant is neither domiciled nor has an establishment in any of the Member States,
     such proceedings shall be brought in the courts of the Member State in which the plaintiff
     is domiciled or, if he is not domiciled in any of die Member States, in which he has an
     establishment.
(3) If neither the defendant nor the plaintiff is so domiciled or has such an establishment, such
     proceedings shall be brought in the courts of the Member State where the Office is situated.
 (4) Notwithstanding the provisions of paragraphs (1), (2) and (3) above:
      (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 à
          different Community Design Court.
 (5) Proceedings in respect of the actions and claims referred to in Article 85(a) and (d) may also
      be brought in the courts of the Member State in which the act of infringement has been
      committed or threatened.
                                                Article 87
                                 Extent of jurisdiction on infringement
 (1) A Community Design Court whose jurisdiction is based on Article 86(1), (2), (3) or (4) shall
      have jurisdiction in respect of acts of infringement committed or threatened within the
      territory of any of the Member States.
                                                    85
 ---pagebreak--- (2) A Community Design Court whose jurisdiction is based on Article 86(5) shall have
    jurisdiction only in respect of acts of infringement committed or threatened within the
    territory of the Member State in which that court is situated.
                                             Article 88
                        Action or counterclaim for a declaration of invalidity
                                      of a Community 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 27.
(2) In the case specified in Article 27(1 )(d), the action or the counterclaim may be brought only
     by the person or persons entitled to the Community Design and, in the case specified in
     Article 27(2), only by the right holder of the earlier right.
(3) If the counterclaim is brought in a legal action to which the right holder in the Community
     Design is not already a party, he shall be informed thereof and may be joined as a party to
     the action in accordance with the conditions set out in the law of the Member State where
     the court is situated.
(4) The validity of a Community Design may not be put in issue in an action for a declaration
     of non-infringement.
                                             Article 89
                          Presumption of validity - defence as to the merits
(1) In proceedings in respect of an infringement action or an action for threatened infringement,
     the Community Design Court shall treat the Community Design as valid unless its validity
     is put in issue by die defendant with a counterclaim for a declaration of invalidity.
(2) In proceedings in respect of an infringement action or an action for threatened infringement,
     the Community Design Court shall, when the right holder presents evidence to sustain his
     claim that the design has an individual character, treat the design as new within the meaning
     of Article 5 unless in any counterclaim for a declaration of invalidity proof is presented to
     the contrary by the defendant in the main action. , 4
 (3) In proceedings referred to in paragraph (1), a plea relating to the invalidity of a Community
     Design submitted otherwise than by way of counterclaim shall be admissible in so far as the
     defendant claims that the Community Design should be declared invalid on account of a
     national design right within the meaning of Article 27(2) belonging to him.
                                                  86
 ---pagebreak---                                              Article 90
                                      Judgments on validity
(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 27 are found to prejudice the maintenance of
        the Community Design, die Court shall declare the Community Design invalid;
    (b) if none of the grounds mentioned in Article 27 is found to prejudice the maintenance of
        the Community Design, the Court shall reject the counterclaim.
(2) The Community Design Court with which a counterclaim for a declaration of invalidity of
    a Registered Community Design has been filed 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 in the Registered
    Community Design and after hearing the other parties, stay the proceedings and request the
    defendant to submit an application for a declaration of invalidity to the Office within a time
    limit which it shall determine. If the application is not made within the time limit, the
    proceedings shall continue; the counterclaim shall be deemed withdrawn. Article 95(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 die
    judgment shall be sent to the Office. Any party may request information about such
    transmission. The Office shall mention the judgment in the Register in accordance with 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 same subject-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 91
                               Effects of the judgment on validity
When it has become final, a judgment of a Community Design Court declaring a Community
Design invalid shall have, subject to Article 27(3), in all the Member States the effects specified
in Article 28.
                                                 87
 ---pagebreak---                                              Article 92
                                          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 international law.
(3) Unless otherwise provided in this Regulation, a Community Design Court shall apply the
    rules of procedure governing the same type of action relating to a national designrightin the
    Member State where it is situated.
                                             Article 93
                               Sanctions in actions for infringement
(1) Where in an action for infringement or for threatened infringement a Community Design
    Court finds that die defendant has infringed or threatened to infringe a Community Design,
    it shall, unless there are special reasons for not doing so, issue an order prohibiting the
    defendant from proceeding with die acts which have infringed or would infringe the
    Community Design.
(2) Where in an action for infringement a Community Design Courtfindsthat the defendant has
    infringed a Community Design, the Court shall, unless there are special reasons for not doing
    so:
    (a) enjoin the infringer to provide forthwith information concerning the origin of the
        infringing products and die channels through which they are commercialized;
    (b) issue an order to seize the infringing products.
(3) The Community Design Court shall take such measures in accordance with its national law
    as are aimed at ensuring the orders referred to in paragraphs (1) and (2) are complied with.
(4) In all other respects the Community Design Court shall apply the law of the Member State
    in which the acts of infringement or threatened infringement were committed, including its
    private international law.
                                             Article 94
                       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 on national design rights,
    or those which followfromthe application of the provision in Article 93(2)(a), even if, under
    this Regulation, a Community Design Court of another Member State has jurisdiction as to
    the substance of the matter.
                                                 88
 ---pagebreak--- (2) In proceedings relating to provisional measures, including protective measures, a plea
    otherwise than by way of counterclaim relating to the invalidity of a Community Design
     submitted by the defendant shall be admissible. Article 88(2) shall, however, apply mutatis
    mutandis.
(3) A Community Design Court whose jurisdiction is based on Article 86(1), (2), (3) or (4) shall
    have jurisdiction to grant provisional measures, including protective measures, which, subject
     to any necessary procedure for recognition and enforcement pursuant to Tide III of the
     Convention on Jurisdiction and Enforcement, are applicable in the territory of any Member
     State. No other court shall have such jurisdiction.
                                               Article 95
                                   Specific rules on related actions
(1) A Community Design Court hearing an action referred to in Article 85, other than an action
     for a declaration of non-infringement, shall, unless there are special grounds for continuing
     the hearing, of its own motion after hearing the parties, or at the request of one of die parties
     and after hearing the other parties, stay the proceedings where the 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
     declaration of invalidity has already been filed at the Office.
(2) The Office, when hearing an application for a declaration of invalidity of a Registered
     Community Design, shall, unless there are special grounds for continuing the hearing, of its
     own motion after hearing the parties, or at the request of one of the parties and after hearing
     the other parties, stay the proceedings where die validity of the Registered Community 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, the
     court may, after hearing the other parties to these proceedings, stay the proceedings. The
     Office shall in this instance continue the proceedings pending before it.
(3) Where the Community Design Court stays the proceedings it may order provisional measures,
     including protective measures, for the duration of the stay.
                                            - Article 96
           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 first instance in respect of proceedings arising from the
      actions and claims referred to in Article 85.
 (2) The conditions under which an appeal may be lodged with a Community Design Court of
      second instance shall be determined by the national law of the Member State in which that
      court is located.
 (3) The national rules concerning further appeal shall be applicable in respect of judgments of
      Community Design Courts of second instance.
                                                   89
 ---pagebreak---                                               Section 3
                          Other disputes concerning Community Designs
                                                       •. >•
                                             Article 97
                 Supplementary provisions on the jurisdiction of national courts
                               other man Community Design Courts
(1) Within the Member State whose courts have jurisdiction under Article 83(1), the courts
    having jurisdiction for actions relating to Community Designs other than those referred to in
    Article 85 shall be those which would have jurisdiction ratione loci and ratione materiae in
    actions relating to a national design right in that State.
(2) Actions relating to Community Designs other than those referred to in Article 85, for which
    no court has jurisdiction under Article 83(1) and (1) of this Article may be heard before the
    courts of the Member State in which the Office is situated.
                                             Article 98
                                  Obligation of the national court
A national court which is dealing with an action relating to a Community Design other than the
actions referred to in Article 85 shall treat the design as valid. Article 89(2) and Article 94(2)
shall, however, apply mutatis mutandis.
                                             TTTLEXI
                    EFFECTS ON THE LAWS OF THE MEMBER STATES
                                             Article 99
                       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 die same parties are brought before the courts of different Member States,
    one being seized on the basis of a Community Design and the other seized on the basis of
    a design right providing simultaneous protection, the court other than the court first seized
    shall of its own motion decline jurisdiction in favour of that court. The court which would
    be required to decline jurisdiction may stay its proceedings if the jurisdiction of the other
    court is contested.
(2) The Community Design Court hearing an action for infringement or threatened infringement
    on the basis of a Community Design shall reject the action if afinaljudgment on die merits
    has been given on die same cause of action and between the same parties on the basis of a
    designrightproviding simultaneous protection.
                                                 90
 ---pagebreak--- (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 judgement on the merits has been given
    on the same cause of action and between the same parties on the basis of a Community
    Design providing simultaneous protection.
(4) The preceding paragraphs shall not apply in respect of provisional measures, including
    protective measures.
                                              Article 100
                    Relationship to other forms of protection under national law
(1) Nothing in this Regulation shall prevent actions concerning designs protected by Community
    Designs from being brought under any legal provisions of the Community or of a Member
    State relating to trademarks or other distinctive signs, patents and utility, models, typefaces,
    civil liability and unfair competition.
(2) Pending further harmonization of the laws of copyright of the Member States, a design
    protected by a Community Design shall also be eligible for protection under such laws as
    from the date the design was created or fixed in any form, irrespective of the number of
    products to which such design is intended to be incorporated or to be applied and irrespective
    of whether the design can be dissociated from the products to which it is intended to be
    incorporated or applied. The extent and the conditions under which such a protection is
    conferred, including the level of originality required, shall be determined by each Member
    State.
(3) Each Member State shall admit to the protection under its law of copyright a design protected
    by a Community Design which fulfils the conditions required by such law, even if in another
    Member State which is the country of origin of the design, the latter does not fulfil the
    conditions for protection under die law of copyright of that State.
                                              TTTLE XII
                              THE COMMUNITY DESIGN OFFICE
                                               Section 1
                                          General provisions
                                              Article 101
                                              Legal status
(1) The Office shall be a body of the Community. It shall have legal personality.
(2) The Office shall be located at the seat of the Community Trade Mark Office.
                                                   91
 ---pagebreak--- (3) In each of the Member States, the Office shall enjoy the most extensive legal capacity
     accorded to legal persons under their laws; it may, in particular, acquire or dispose of
     movable and immovable property and may be a party to legal proceedings. For these
     purposes, the Office shall be represented by its President.
                                            Article 102
                                      Administrative services
The Community Design Office may have recourse to the administrative services of the
Community Trade Mark Office under conditions defined in the implementing regulations
established under the Council Regulation (EEC) No. .../... on the Community Trade Mark(3) and
those established under the present regulation.
                                             Article 103
                                                Staff
(1) The Staff Regulations of officials of the European Communities, the Conditions of
     Employment of other servants of the European Communities and the rules adopted by
     agreement between the Institutions of the European Communities for giving effect to those
     Staff Regulations and Conditions of Employment shall apply to the staff of the Office,
     without prejudice to the application of Article 118 to the members of the Boards of Appeal.
(2) Without prejudice to Article 108, die powers conferred on each Institution by the Staff
     Regulations and by the Conditions of Employment of other servants shall be exercised by the
     Office in respect of its staff.
                                             Article 104
                                     Privileges and immunities
The Protocol on the Privileges and Immunities of the European Communities shall apply to the
Office.
                                             Article 105
                                              Liability
 (1) The contracmal liability of the Office shall be governed by the law applicable to the contract
     in question.
 (2) The Court of Justice of the European Communities shall be competent to give judgment
     pursuant to any arbitration clause contained in a contract concluded by the Office.
 (3) In the case of non-contractual liability, the Office shall, in accordance with the general
     principles common to the laws of the Member States, make good any damage caused by its
      departments or by its servants in the performance of their duties.
 (3)
      OJNoL
                                                  92
 ---pagebreak--- (4) The Court of Justice shall have jurisdiction in disputes relating to compensation for the
    damage referred to in paragraph 3.
(5) The personal liability of its servants towards the Office shall be governed by the provisions
     laid down in their Staff Regulations or in the Conditions of Employment applicable to them.
                                              Article 106
                                  Jurisdiction of the Court of Justice
The Court of Justice shall have jurisdiction in actions brought against the Office under the
conditions provided for in Articles 173 and 175 of the Treaty unless the decision in question is
subject to appeal to the Board of Appeal under the provisions of this Regulation.
                                                Section 2
                                      Management of the Office
                                               Article 107
                                        Powers of the President
(1) The Office shall be managed by the President.
(2) In addition to the powers conferred on the President by the present Regulation:
   (a) he shall take all necessary steps, including the adoption of internal administrative
        instructions and the publication of notices, to ensure the functioning of the Office;
   (b) he may place before the Commission any proposal to amend this Regulation, to the extent
        that it applies to Registered Community Designs, the Implementing Regulation, the rules
        of procedure of the Boards of Appeal, the Fees Regulation and any other rule applying to
        Registered Community Designs after consulting the Administrative Board;
   (c) he shall submit a management report to the Commission, the European Parliament and the
        Administrative Board each year;
   (d) he shall exercise in respect of the staff the powers referred to in Article 103(1);
   (e) he may delegate his powers.
(3) The President shall be assisted by one or more Vice-Presidents. If the President is unable to
      act, the Vice-President or one of the Vice-presidents shall take his place in accordance with
     the procedure laid down by the Administrative Board.
                                               Article 108
                                    Appointment of senior officials
(1) The President of the Office shall be appointed by die Commissionfroma list of at most three
      candidates, which shall be prepared by the Administrative Board. Power to dismiss the
      President shall lie with the Commission, acting on a proposal from die Administrative Board.
 (2) The term of office of the President shall not exceed five years. This term of office shall be
      renewable.
                                                    93
 ---pagebreak--- (3) The Vice-President or Vice-Presidents of the Office shall be appointed or dismissed as in
    paragraph 1, after consultation of the President.
(4) The Commission shall exercise disciplinary authority over the officials referred to in
    paragraphs 1 and 3 of this Article.
                                                  Section 3
                                          Administrative Board
                                                 Article 109
                                           Creation and powers
(1) An Administrative Board is hereby set up, attached to the Office.
(2) In addition to any powers conferred on it by other provisions of the present Regulation:
     (a) it shall set the date for the first filing of applications for Registered Community Designs
         pursuant to Article 128(2);
     (b) it shall advise the President on matters for which the Office is responsible;
     (c) it shall be consulted before adoption of the guidelines for examination as to formal
         requirements and invalidity proceedings in the Office and in the other cases provided for
         in this Regulation;
     (d) it shall, at regular intervals, hold an exchange of views on the development of the case-
         law communicated under the system of exchange of information established by
         Article 125;
     (e) it may deliver opinions and requests for information to the President and to the
         Commission where it considers that this is necessary.
                                                 Article 110
                                                 Composition
(1) The Administrative Board shall be composed of one representative of each Member State and
     one representative of the Commission and their alternates.
(2) The members of the Administrative Board may, subject to the provisions of its rules of
     procedure, be assisted by advisers or experts.
                                                 Article 111
                                                Chairmanship
(1) The Administrative Board shall elect a Chairman and a Deputy Chairman from among its
     members. The Deputy Chairman shall ex officio replace the Chairman in the event of his
     being prevented from attending to his duties.
 (2) The duration of the terms of the Chairman and the Deputy Chairman shall be three years. The
     terms of office shall be renewable.
                                                      94
 ---pagebreak---                                             Article 112
                                             Meetings
(1) Meetings of the Administrative Board shall be convened by its Chairman.
(2) The President of the Office shall take part in the deliberations, unless the Administrative
    Board decides otherwise. He shall not have the right to vote.
(3) The Administrative Board shall hold an ordinary meeting once a year; in addition, it shall
    meet on the initiative of its Chairman or at the request of the Commission or of one-third of
    the Member States.
(4) It shall adopt rules of procedure.
(5) The Administrative Board shall take its decisions by a simple majority of the representatives
    of die Member States. However, a majority of three-quarters of the representatives of the
    Member States shall be required for the decisions which the Administrative Board is
    empowered to take under Article 108(1) and (3). In both cases each Member State shall have
    one vote.
(6) The Administrative Board may invite observers to attend its meetings.
(7) The Secretariat for the Administrative Board shall be provided by the Office.
                                             Section 4
                                   Implementation of procedures
                                            Article 113
                                            Competence
The following departments of the Office shall be competent for taking decisions in connection
with the procedures laid down m this Regulation:
(a) Formalities Examining Divisions;
(b) a Design Administration and Legal Division;
(c) Invalidity Divisions;
(d) Boards of Appeal.
                                            Article 114
                                  Formalities Examining Division
A Formalities Examining Division shall be responsible for taking decisions in relation to an
application for a Registered Community Design.
                                                 95
 ---pagebreak---                                              Article 115
                            Design Administration and Legal Division
(1) The Design Administration and Legal Division shall be responsible for those decisions
    required by this Regulation which do not fall within the competence of a Formalities
    Examining Division or an Invalidity Division. It shall in particular be responsible for
    decisions in respect of entries in the Register.
(2) It shall also be responsible for keeping the list of professional representatives which is
    referred to in Article 82.
(3) A decision of the Division shall be taken by one member.
                                             Article 116
                                         Invalidity Divisions
(1) An Invalidity Division shall be responsible for taking decisions in relation to an application
     for a declaration of invalidity of a Registered Community Design.
(2) An Invalidity Division shall consist of three members. At least two of these members must
     be legally qualified.
                                             Article 117
                                          Boards of Appeal
(1) A Board of Appeal shall be responsible for deciding on appeals from decisions of the
     Formalities Examining Divisions, Design Administration and Legal Division and Invalidity
     Divisions.
(2) A Board of Appeal shall consist of three members. At least two of these members must be
     legally qualified.
                                             Article 118
                       Independence of the members of the Boards of Appeal
(1) The members, including the Chairmen, of the Boards of Appeal shall be appointed for a term
     of five years in accordance with the procedure laid down in Article 108 for the appointment
     of die President. They may not be removed from office during this term, unless there are
     serious grounds for such removal and die Court of Justice, on application by the body which
     appointed them, takes a decision to this effect. Their term of office shall be renewable.
(2) The members of the Boards of Appeal shall be independent. In their decisions they shall not
     be bound by any instructions.
 (3) The members of the Boards of Appeal may neither be members of any other department of
     the Office, nor be members of any department of die Community Trade Mark Office, except
      its Boards of Appeal.
                                                   96
 ---pagebreak---                                              Article 119
                                      Exclusion and objection
(1) Members of the Invalidity Divisions and Boards of Appeal may not take part in any
    proceedings if they have any personal interest therein, or if they have previously been
    involved as representatives of one of the parties. Members of the Boards of Appeal may not
    take part in appeal proceedings if they participated in the decision under appeal.
(2) If, for one of the reasons mentioned in paragraph 1 or for any other reason, a member of an
    Invalidity Division or Board of Appeal considers that he should not take part in any
    proceedings, he shall inform the Division or Board accordingly.
(3) Members of an Invalidity Division or Board of Appeal may be objected to by any party for
    one of the reasons mentioned in paragraph 1, or if suspected of partiality. An objection shall
    not be admissible if, while being aware of a reason for objection, the party has taken a
    procedural step. No objection may be based upon the nationality of members.
(4) The Invalidity Division or Board of Appeal shall decide as to the action to be taken in the
    cases specified in paragraphs 2 and 3 without the participation of the member concerned. For
    the purposes of taking this decision, the member who withdraws or has been objected to shall
    be replaced by his alternate.
                                            Article 120
             Appointment of members of Invalidity Divisions and Boards of Appeal
                                    during a transitional period
(1) During a transitional period, the expiry of which shall be determined by the Commission on
    a proposal by the President of the Office, the President may appoint on a short-term contract
    basis as members of the Invalidity Divisions persons employed in the central industrial
    property Offices of the Member States or in the Benelux Design Office or in courts or other
    authorities of the Member States and having an experience in issues relating to the validity
    of design rights or applications for such rights in the Member States. These persons may
    continue their existing employment. They may be reappointed.
(2) During a transitional period, the expiry of which shall be determined by the Commission on
    a proposal by the President of the Office, the Commission may appoint as members of the
    Boards of Appeal members of courts or other authorities of the Community or of the Member
    States who may continue their activities in the court or the authority of origin. These persons
    may be appointed for a term of less than five years, though this shall not be less than one
    year, and may be reappointed.
                                                 97
 ---pagebreak---                                              Section 5
                                       Financial provisions
                                            Article 121
                                              Budget
(1) The revenues of the Office shall consist of the fees paid in accordance with the provisions
     of this Regulation and, to the extent necessary, of a contribution from the Community.
(2) The expenditure of the Office shall include the costs of staff, administrative, infrastructure
     and operational expenses.
(3) By 15 February each year at the latest, the President shall draw up a preliminary draft
     budget covering expenditure and the program of work anticipated for the following financial
     year, and shall forward this preliminary draft to the Administrative Board together with an
     establishment plan.
(4) Revenue and expenditure shall be in balance.
(5) By 31 March each year at the latest, the Administrative Board shall establish the draft
     budget and forward it together with the establishment plan to the Commission which on that
     basis shall establish the relevant estimates in the preliminary draft general budget of the
      European Communities.
(6) The Administrative Board shall adopt the Office's final budget before the beginning of the
      financial year, adjusting it where necessary to the Community contribution and the Office's
      other resources.
(7) The President shall implement the Office's budget.
(8) Control of the commitment and payment of all the Office's expenditure and control of the
      existence and recovery of all the Office's revenue shall be exercised by the Commission's
      financial controller.
(9) By 31 March each year at the latest, the President shall forward to the Commission, the
      Administrative Board and the Court of Auditors the accounts for all the Office's revenue and
      expenditure in respect of the precedingfinancialyear.
      The Court of Auditors shall examine them in accordance with Article 206a of the Treaty.
(10) The Administrative Board shall give a discharge to the President in respect of the
      implementation of the budget.
 (11) The Administrative Board shall adopt the internal financial provisions of the Office after
      consultation with the Commission and the Court of Auditors.
                                                 98
 ---pagebreak---                                            Article 122
                                               Fees
The amount of the fees referred to in this Regulation shall be established by the Commission
following consultation of the Committee referred to in Article 126.
                                           TTTLE X m
                                     FINAL PROVISIONS
                                           Article 123
                                        Official languages
The official languages and the languages of proceedings of the Office shall be the same as those
for the Community Trade Mark Office.
                                           Article 124
                              Community implementing provisions
The rules implementing this Regulation, in particular the rules concerning die filing of
applications, multiple applications, examinations as to formal requirements, registration,
publication, and the deferment of the publication, and the rules of procedure of the Boards of
Appeal shall be adopted in an Implementing Regulation in accordance with the procedure laid
down in Article 126.
                                           Article 125
                               System of exchange of information
A system of exchange of information is hereby established concerning decisions relating to the
compliance with the requirements for protection both as regards Community designs and design
rights of Member States. The Implementing Regulation shall set out how and by which authority
such a system will be operated.
                                            Article 126
                          Establishment of a committee and procedure
                          for the adoption of implementing regulations
The Commission shall be assisted by a committee of an advisory nature on Fees, Implementation
Rules, and the procedure of the Boards of Appeal, which shall be composed of the representatives
 of the Member States and chaired by the representative of the Commission.
 The representative of the Commission shall submit to the committee a draft of the measures to
 be taken. The committee shall deliver its opinion on the draft, within a time limit which the
 chairman may lay down according to the urgency of die matter, if necessary by taking a vote.
                                                 99
 ---pagebreak--- The opinion shall be recorded in the minutes; in addition, each Member State shall have the right
to ask to have its position recorded in the minutes.
The Commission shall take the utmost account of the opinion delivered by the committee. It shall
inform the committee of the manner in which its opinion has been taken into account.
                                              Article 127
                                           Fees Regulation
(1) The Fees Regulation shall determine in particular the amounts of the fees and the ways in
     which they are to be paid.
(2) In addition to the fees already provided for in this Regulation, fees shall be charged, in
     accordance with the detailed rules of application laid down in die Implementing Regulation,
     in the cases listed below:
     (a) late payment of die 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 anotherrightin 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;
     (1) communication of information of a file;
     (m) review of the determination of the procedural costs to be refunded;
     (n) issue of certified copies of the application.
 (3) The amounts of the fees shall be fixed at such a level as to ensure that the revenue in respect
     thereof is in principle sufficient for the Office's revenue and expenditure to be balanced.
                                              Article 128
                                            Entry into force
 (1) This Regulation shall enter into force on die 60th day following that of 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 the recommendation by the President.
 (3) Applications for Registered Community Designs filed within three months before the date
      referred to in paragraph (2) shall be deemed to have been filed on that date.
                                                   100
 ---pagebreak--- This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels,
For the European Parliament                                       For the Council
The President                                                    The President
                                               101
 ---pagebreak---                                   FINANCIAL STATEMENT
1   Tide
    Proposal for a Council Regulation (EEC) on the Community Design
2.  Budget Heading
    B5-305, to be created
3.  Legal Base
    Article 100a of the Treaty
4.  Description of the measure
4.1 Specific objectives
    The proposed Regulation would create a unitary protection system throughout the
    Community for designers' work and would comprise two kinds of Community Design, one
    being a registered right and the other an unregistered right. By securing such a right, a
    designer would be able to protect himself from infringers of his design. A Community
    system would remove the problem which results from present national design laws, namely
    that conflicting rights can exist in different Member States with obvious negative impact on
    the functioning of the internal market.
    The registered right requires the setting-up of a Community Designs Office, as a body with
    the necessary legal, administrative and financial independence for carrying out the tasks
    associated with registration. It is foreseen that this Office would have a structure based on
    that of the Community Trade Marks Office proposed in the Communication of the
    Commission to the Council of 25 November 1980, modified on 9 August 1984
    (OJ No C 230 of 31 August 1984) concerning a Regulation on the Community Trade Mark)
    and would have the status of a Community body having legal personality, and would
    exercise the powers conferred on it by the proposed Regulation.
    As envisaged, the Office would consist of four departments for, respectively, formalities
    examination, assessing invalidity of registrations, administrative and legal matters, and
    Boards of Appeal. Many administrative functions would be the same as those encountered
    in the Community Trade Marks Office itself, and economies of scale would dierefore be
    achievable, for example in the area of administration if the Offices were to share some
     administrative services.
                                                 102
 ---pagebreak--- 4.2 Period
    Actions to implement the Regulation will continue over several years. It is assumed that up
    to two years may be needed for the Community Design Office to be set up prior to opening,
    and it is estimated that it will have become fully operational after a further period of three
    to five years from establishment. Preferably, this period will be four years (see paragraph
    7.4 below). By this time the expenses of the Office should be covered by the receipts from
    registration and other fees.
    It is, however, not yet possible to say when these actions will start, nor therefore when the
    Community Design Office will open, but nothing is envisaged before 1996 at the earliest.
4.3 Persons affected by the measure
    Community Design protection will affect applicants for, and right holders in, Community
    Designs, and also those who trade in design goods, and any infringers. Many of the
    industries in the Member States will therefore be affected.
    The measure will also affect some Community instimtions including, in addition to die new
    Community Designs Office itself, the Community Trade Marks Office, the Court - to which
    appeals will be possible under the regulation and the Commission because of its right to
    participate in certain actions concerning design rights before the Office.
5-  Classification of expenditure and receipts
5.1 DNO
5.2 CD
6
    Nature of the expenditure and receipts
6.1 Subvention at 100%
    For the assumed two years before opening of the Designs Office, expenditure is estimated
    to be of the order of ECU 1 570 000 for the first year, and ECU 2 254 540 for the second
    year, this being the amount needed to cover the costs of setting up the Office and of putting
    it into operation. As no fees will be received during this time, subventions will be needed
    to cover these amounts. It is assumed that the Community Trade Mark Office will already
    exist, so that the setting-up costs for the Designs Office may be lower than they would
    otherwise have been.
                                               103
 ---pagebreak--- 6.2 Co-financement
    After opening, the Office will begin to receive fees income, and subvention will only be
    needed to supplement this to cover expenditure for a period of approximately four years.
    After this estimated period, the Office should be fully operational and self-supporting. Only
    if this were not the case would the Community need to be asked to grant a sufficient
    continuing subsidy until balance was achieved. This subsidy would in any case progressively
    be reduced, the object being to ensure that the Office will recover its costs from the income
    derived from fees as soon as this can be reasonably achieved. Suitable choice of fees can
    be used to some extent to control the date when this balance is reached between income and
    expenditure. This is explained further in paragraph 7.4 below which also warns, however,
    that the scope for such control is limited, particularly by the fact that renewal fees only
    become payable from the fifth year and these are to be a major source of income.
6.3 Interest
    None
6.3 Other
    None
6.5 Reimbursement
    No
6.6 Modification of level of receipts
    No
?•   Financial Effects
7.1 Total cost of the measure
     The initial costs of setting up the Office are estimated to be ECU 70 000 and
     ECU 2 254 540 respectively, in each of the two years before opening, giving a total of
     ECU 3 824 540. It must be remembered that the actual year of opening is not yet known.
     The figures are derived by considering direct staff costs, namely salaries, other staff-related
     costs such as welfare, pension provisions, insurances and so on, provision of services for the
     Office and the provision of equipment including initial computer installations.
                                                104
 ---pagebreak---      These computer installations will include more than just the computer which has to perform
     the Office's general admininstrative functions. A major computer installation will be the
     essential tool of the Design registration system - itself the "raison d'être" for the Office - and
     will have to perform with high reliability the many functions associated with registration and
     with any subsequent actions including legal actions which may flow from it over a possibly
     extended period. If the Office is to operate efficiently and cost-effectively, the computer will
     need to be sophisticated, state of the art equipment which is able to record graphic and
     pictorial images by optical scanning, to associate these with various textual data, and to
     reproduce this data in various ways according to demand.
     The cost will therefore inevitably be high and must arise in the period before the Office
     opens. It will, however, be a once-only cost.
72 budgetary breakdown - ECUs
  Year                      -2                   -1                  1                   2
I Total staff               10                  14                 22                   45
  Staff (1.1)           670 000             966 140          1 564 200           3 294 000
  Staff (1.2)           200 000             288 400             466 400             983 250
  Equipment (2)          700 000         1 000 000              750 000             250 000
  Total               1 570 000          2 254 540           2 780 600           4 527 250
     The year "-2" means the first of the two years before the Office opens. This cannot be
     earlier than 1996, and is quite likely to be later. The figures include an annual inflation
     factor.
                                                  105
 ---pagebreak---          7.3 Echéancier indicatif
                 ECUs                               CE                             CP
           Year -2 (1996?)                      1 570 000                      1 570 000
           Year -1 (1997?)                      2 254 540                      2 254 540
           Year +1    (1997?)                   2 780 600                      2 780 600
           Year +2 (1998?)                      4 527 250                      4 527 250
             This assumes that year -2 is 1996, but as already explained it could well be later. From year
             +1 onwards, receipts from fees will begin to offset expenses until they balance .
         ^4 Estimated fees income
             A large range of different fees is contemplated. The fifth year after opening (year +5) will
             be the significant year because this is when renewal fees first become payable. These will
             be set at a relatively higher level and will represent a major source of income. Before this
              date, however, the most significant fees will be those associated with registration, covering
              registration itself, publication, possible multiple applications, and so on. For the purposes
              of this estimate, these are combined notionally into a general registration fee, and the
              following table summarizes the impact on the Community subsidy of choosing figures for
             this fee of ECU 200, 300 and 400. It assumes a more or less linear rise in registrations over
              thefirstfiveyears. Fees for challenging validity of registrations will also arise but are likely
              to have less effect, for the purpose of this estimate, than the registration fees.
  YEAR            -2               -1            +1            +2             +3             +4               +5
  Subsidy      1 570 000      2 254 540       1 735 600     3 247 250       2 507 250     1 967 250         -192 750
1 E C U 200
| Subsidy      1 570 000       2 254 540      2 040 600     2 747 250       1 707 250        967 250       -1 192 750
  E C U 300
  Subsidy      1 570 000       2 254 540      1 335 600     2 247 250         907 250         -32 750      -2 192 750
  E C U 400
                                                          106
 ---pagebreak---     If the general registration fee is ECU 300, this would lead to a surplus in year +5 and
    subsidy would be no longer needed. If, the registration fees were set at ECU 200, then
    balance would only just be achieved in year +5, with no room for unforeseen effects. The
    validity-challenge fees cannot be set too high as this could give rise to political difficulties.
    If, however, registration fees were set at ECU 400, the break-even year would be year +4
    instead of year +5, although this would lead to an excessive surplus of income over
    expenditure in Year +5 when renewal fees become payable. Such a surplus may be difficult
    to justify to fee payers, but this would nevertheless be the preferred option because balance
    would then be achieved as soon as possible. If necessary the fees could be reviewed at that
    stage, and this review could take account of public reaction.
8.  Anti-fraud measures
    The President of the Office must submit each year to the Commission and to the Court of
    Auditors accounts of the entire Office's total revenue and expenditure for the preceding
    financial year. In addition, the financial rules applicable to the general budget of the
    Communities will apply to the Office. Anti-fraud measures are therefore foreseen as being
    covered by these procedures.
9.  Cost Efficiency
9.1 Objectives
    The proposed measure is to meet the desire for a Community scheme under which
    enterprises may obtain by a single procedure a design right providing protection with
    uniform effect throughout the Community. After an initial period of five years from
    opening, the Community Designs Office should be fully operational and self-supporting, and
    be issuing 8 000 registrations per annum. In addition, it is estimated that it will, on request,
    consider the validity of 3 600 registrations per annum, and its Boards of Appeal will hear
    500 appeals against decisions taken by the Office.
9.2 Justification for the measure
    The reasons justifying the financial intervention of the Community are, as mentioned in
    paragraph 4.1 and explained more fully below, that a unitary system is the only way of
    removing the internal market barriers caused by the existence of conflicting national design
    rights in the Member States. Harmonization measures alone would not be sufficient to
    achieve this result. It is also important to note thatfinancialsupport from the Community
    will be needed for only a relatively small number of years, because once the Office is fully
    functional it is intended to make it self-supporting by appropriate calculation of the fees.
    The object of the Regulation is to provide a single procedure by which a unitary right may
    be acquired having uniform effect throughout all territories of the Community. Present
    design protection laws differ considerably between Member States and as a result trade and
    competition in products incorporating a design are hindered and distorted by the large
    number of applications, offices procedures, laws, and nationally circumscribed exclusive
    rights, and by the consequently high costs and fees for designers seeking protection.
                                                107
 ---pagebreak---      Although approximation of national design laws is desirable, this is still no substitute for a
     Community-wide protection system and would not satisfy the needs of the internal market
     since protection would still end at the frontiers of die States in which it had been acquired.
     Thus in spite of approximation of laws, there would remain a strong risk that conflicting
     rights could exist in other Member States, and the only solution to this is a supranational
     protection system. This calls for a designrightwhich is directly applicable in each Member
     State and for a Community design authority with Community-wide powers, because only
     in this way will it be possible for a designer to obtain through one application to a single
     design office in accordance with a single procedure under one law, a single designrightfor
     one area encompassing all Member States.
     The present Regulation is the legal instrument for achieving this. It is clearly necessary
     because there is no way in which national procedures would be able in themselves to
     provide this supranational solution to the internal market problem of conflicting rights.
9.3     Follow up and evaluation
9.3.1 Indications of performance
        These will include:
            the number of designs registered by the Office;
            the number of applications for declarations of invalidity examined by the Office;
            the number of appeals against decisions of die Office made to the Boards of Appeal.
9.3.2 Evaluation
        The Office must submit a management report to the Commission and to the
        Administrative Board of the Office each year.
9.4     Coherence:
94.1    Financial programme of DG XV (ex DG IIP
        The preparatory work on the measure by the officials concerned is foreseen in the
        financial programme of DG XV (ex DG III).
9.4.2   Corresponding objectives
        The Community Designs Office would conveniently share administrative services with the
        Community Trade Marks Office. Its budgetary procedure and financial control will be
        regulated in accordance with Section 5 of Title XII of the proposed Regulation. Estimates
        of revenue and expenditure for the Community Design Office will be prepared each year.
        They will be entirely separate from the Community Trade Mark Office's budget.
                                                 108
 ---pagebreak---       There is therefore a common interest in achieving these two objectives of a Community
      Trade Marks Office and a Community Designs Office. Nevertheless, the Designs Office
      is to be made an independent institution, and it is therefore not foreseen that progress on
      the present proposal need be prejudiced by lack of further progress on the other.
9.4.3 Uncertainties
      No specific factors affecting the outcome of the measure may be foreseen at this stage.
10.   Administrative expenses
10.1  Commission staff
      No increase in staff is necessary. At present, the work already occupies the fulltime
      services of two A Grades and a certain amount of time at Head of Unit level and B Grade
      level. This will continue to be required in order to handle the work associated with the
      progress of this proposal, including representation at Council Working Groups and
      maintaining continued discussion with public interest groups.
10.2  Administrative expenditure
      Additional expenditure may arise from the need for:
      Missions - (Budget line A 1300)
      A possible 10 missions per year, each involving 1 person for an average of 2 days, and
      likely to take place in one of the major Community capitals, imply annual costs estimated
      at ECU 7 000 starting in 1993.
      Special meetings, such as experts meetings - (Budget line A 2500)
      The cost of 2 meetings per year in Brussels each with 20 participants is estimated at
      ECU 24 000 per year starting in 1993.
                                               109
 ---pagebreak---                    THE IMPACT OF THE PROPOSAL ON BUSINESS
                               (with special reference to SMEs)
1. Why is Community legislation necessary?
   To establish a Community system for the protection of industrial design with the aims of:
   (a) ensuring that designers and design industries may organize better protection through
       a single action with direct and uniform effect throughout die Community;
   (b) improving the functioning of the Internal Market;
   (c) improving competitiveness for the European designs industry, by supporting the
       acknowledged superiority of European designers' products over competing products
       from other parts of the world.
2. Which business will be affected?
   (a) The sector mainly affected will be those manufacmring businesses whose products
       have an appearance which embodies commercially valuable design features.
   (b) All sizes of business are likely to be affected, from multinationals, where design may
       be only one aspect of a far more complex product or range of products, to SMEs
       including enterprises consisting of only very small numbers of people. In the latter
       cases, the design may constitute the major selling-point of the product.
   (c) There is no reason to suppose that particular geographical areas will predominate.
3. What will businesses have to do to comply with die proposal?
   Businesses will need to acquire only a single Community registration for each design.
   They need no longer make individual national registrations under different national
   procedures in all those countries where a potential market for the product may exist.
   Because, in addition, they will enjoy automatic protection for an initial period under the
   unregistered Community design, life will be made much easier for these businesses.
   On the other hand, it has been argued by several organizations representing small and
   medium-sized producers of automobile spare parts that, in contrast to the Commission's
   intentions, the interpretation which the Office, and in the last resort the European Court
   of Justice, may give to the criteria for individual character and novelty could lead to a
   lower protection threshold than envisaged.
                                               110
 ---pagebreak---    If this happened, it could mean, it is claimed, that a large number of products of largely
   functional design with little or no aesthetic character and largely predetermined outward
   shape might fall into the scope of protection of the regulation. ,
4. What economic effects is the proposal likely to have?
   (a) on employment?
        Greater ease in securing Community-wide protection should stimulate the activities of
        designers both to innovate and to market more widely, with a positive impact on
        employment especially in smaller enterprises.
        These rights must be observed by third parties, such as competing manufacturers, and
        those who trade in the design-protected products of others. However, the proposal
        contains measures which aim to avoid any unduly onerous effects on SMEs trading
        in replacement parts of complex products such as motor cars.
   (b) on investment and the creation of new businesses?
        Community-wide protection of their designs will give businesses much greater
        confidence in being able to recover their costs and will thereby encourage investment.
        It is difficult to judge exactly the impact for large manufacturing businesses where
        design may only represent one aspect of a product but industry has clearly indicated
        the importance it attaches to Community design protection. On the other hand, there
        should be positive encouragement for creation of smaller businesses where the
        emphasis may lie in the design of a product.
        As regards enterprises who trade in design-protected products, there are provisions
        which limit to a certain extent the exercise of design rights against those whose
        business is in the replacement parts market, such as for example suppliers, repairers
        and insurers in the motorcar aftermarket. While providing protection to promote
        creation, therefore, the provisions permit a measure of competition from independent
        producers.
    (c) on the competitive position of businesses?
         The confidence given by easily obtained Community-wide protection should encourage
         more extensive exercise of design skills and more thorough exploitation of the
         resulting rights. It is in the nature of protectable designs that they do not exhaust the
         fields of opportunity for other designers in a given product area, and the enhanced
         competitiveness which results from this freedom should benefit all sizes of enterprises,
         without posing a severe threat even to very small ones.
                                                  Ill
 ---pagebreak--- 5. Does the proposal contain measures to take account of me specific situation of SMEs?
   It is intended that fees for the registered Community Design should be as low as
   possible. Although the measures contained in die proposal are not directed specifically
   at small and medium-sized enterprises, these may benefit proportionately more than
   large firms, because the greater simplicity and lower costs of securing Community-
   wide protection should be of greater significance in SMEs. It is in some of the smaller
   SMEs that many of today's most innovative and original designers may tend to
   concentrate.
   The proposal will introduce exclusive rights for designers and their successors in title,
   and theserightsmust be respected by competitors. As for SMEs trading in the design-
   protected products of others, it is not appropriate that industrial property law should
   itself contain exemptions for specific industrial sectors. However, for the reasons given
   above, traders in and manufacturers of replacement parts are given certain relief from
   the exercise against them of suchrightsas may exist in these parts. Sincerightscome
   into existence without examination, the Community Design Office is to provide a low
   cost system for anyone to challenge the validity of design rights exercised or
   exercisable against them. The proposal clearly foresees an opportunity for active
   involvement of the Commission in this process, as well as of Member States, with a
   view to ensuring that the relevant provisions are applied in the manner intended.
   Fears about the entering into force of such rights without examination have been
   voiced by some quarters, who feel it could lead to excessive litigation. However, the
   experience of Member States such as France and Germany does not appear to
   substantiate these fears. Litigation cannot be entirely excluded, and where it occurs it
   may be costly.
6. Consultation
    The Commission Services published a Green Paper "The Legal Protection of Industrial
    Design" (HI/F/5131/91), This was widely circulated to thousands of recipients. On the
    basis of a considerable number of submissions from major industrial organizations
    received, interested parties were invited to a Hearing in Brussels on 25 and
    26 February 1992. Reactions have been generally very favourable, and although many
    detailed aspects will need discussion there are only a few issues of difficulty to be
    resolved, mainly concerned with the criteria for protectability and what kinds of design
    should not be eligible for protection.
    Some have expressed concerns that manufacture of certain functional products may
    be monopolized by the existence of designrights,these allegations being based upon
    the absence of a distinction between aesthetic and functional design. However,
    experience shows that this distinction is largely arbitrary and that protection for
    functional designs needs in any case to be provided for by some means. The Design
    Regulation makes protection dependent upon distinctive appearance, and in view of
    this, these concerns should not prove to be justified.
                                           112
 ---pagebreak---       Some industries have expressed the view that the market for replacement parts would
      benefit if protection were denied for any design constrained wholly by the need for
      the product embodying it to interconnect mechanically with another product, and the
      proposal contains appropriate provisions to this end. These concerns have arisen
      notably in the motor and computer industries, with independent producers of
      replacement parts arguing against the perceived monopoly position of the original
      manufacturers. ACEA(1), representing the original motor manufacturers, argue strongly
      that they deserve and require design protection for certain component parts of motor
       cars in order to be able to recover their design costs, and they consider therefore that
      they have made sufficient concession in accepting these provisions on the non-
      protectability of a product design dictated wholly by the way it has to fit mechanically
      with another product. On the other hand, EAPA(2), CLEDIPA(3), AIRC(4i and CLEPA(5),
       representing the component and replacement part manufacturers, continue to argue
      strongly not only against protection for those designs which must mechanically fit, but
       also against protection for other designs which must visually match, the remaining
      parts of a complex product such as a car. They have variously suggested solutions
       such as a "must-match" exception from protection, or a legal licence provision,
      declaring that they are not opposed to paying royalties, but objecting to being
       prohibited from manufacturing and dealing in spare parts.
       Representatives of die insurance industry and consumers also argue that design
       protection of such parts will raise the costs of repair work and of insurance premiums.
0)
    ACEA:        Association des Constructeurs Européens d'Automobiles.
(2)
    EAPA:       European Automotive Panel Association.
(3)
    CLEDIPA: Comité de Liaison Européen de la Distribution Indépendante de Pièces de
                 rechange et Equipements pour Automobiles.
(4)
    AIRC:        Association Internationale des Réparateurs en Carrosserie.
(5)
    CLEPA:       Comité de Liaison de la Construction d'Equipements et de Pièces
                 d'Automobiles.
                                               113
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                                                               COM(93) 342 final
                                                      DOCUMENTS
EN                                                                              08
                                 Catalogue number : CB-CO-93-414-EN-C
                                                             ISBN 92-77-58375-4
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