Journal Article

The overlap between registered Community designs and Community trade marks

Anna Carboni

in Journal of Intellectual Property Law & Practice

Volume 1, issue 4, pages 256-265
Published in print March 2006 | ISSN: 1747-1532
Published online February 2006 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpl002
The overlap between registered Community designs and Community trade marks

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Legal context: Community trade marks and registered Community designs have co-existed since April 2003. The relevant European legislation permits some subject matter to be registered under either or both of these regimes.

Key points In the absence of an express prohibition, it was perhaps inevitable that the owners of distinctive designs would consider registering them as trade marks and, conversely, that the owners of certain non-conventional trade marks might take advantage of opportunities for cheap and speedy registration under the designs system. The ability to obtain registered Community designs and trade marks for the same subject matter is considered here.

Practical significance A party seeking to protect the design of a distinctive product shape or its packaging may be able to register it as a Community trade mark where it has missed the boat for claiming novelty as a registered design, or where a pre-existing design right is about to expire. On the other hand, a distinctive and new logo or get-up which needs quick and cheap protection may benefit from being registered as a Community design. Neither the rights owners, nor those against whom they seek to assert their rights, should accept the validity of a registered Community design without question since there is no substantive examination procedure. However, where valid, it can provide a powerful alternative to a trade mark and a useful additional weapon against unfair competition.

Journal Article.  6343 words.  Illustrated.

Subjects: Arbitration ; Intellectual Property Law

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