EN Official Journal of the European Communities5.1.2002 L 3/1
I
(Acts whose publication is obligatory)
COUNCIL REGULATION (EC) No 6/2002
of 12 December 2001
on Community designs
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular Article 308 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social
Committee (3),
Whereas:
(1) A unified system for obtaining a Community design to
which uniform protection is given with uniform effect
throughout the entire territory of the Community would
further the objectives of the Community as laid down in
the Treaty.
(2) Only the Benelux countries have introduced a uniform
design protection law. In all the other Member States the
protection of designs is a matter for the relevant
national law and is confined to the territory of the
Member State concerned. Identical designs may be therefore
protected differently in different Member States and
for the benefit of different owners. This inevitably leads
to conflicts in the course of trade between Member
States.
(3) The substantial differences between Member States'
design laws prevent and distort Community-wide
competition. In comparison with domestic trade in, and
competition between, products 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. Directive 98/71/EC of the European Parliament
and of the Council of 13 October 1998 on the
legal protection of designs (4) contributes to remedying
this situation.
(4) 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 design which is the subject of national rights
held by different individuals, and hence constitutes an
obstacle to the free movement of goods.
(5) This calls for the creation of a Community design which
is directly applicable in each Member State, because only
in this way will it be possible to obtain, through one
application made to the Office for Harmonisation in the
Internal Market (Trade Marks and Design) in accordance
with a single procedure under one law, one design right
for one area encompassing all Member States.
(6) Since the objectives of the proposed action, namely, the
protection of one design right for one area encompassing
all the Member States, cannot be sufficiently
achieved by the Member States by reason of the scale
and the effects of the creation of a Community design
and a Community design authority and can therefore,
and can therefore be better achieved at Community
level, the Community may adopt measures, in accordance
with the principle of subsidiarity as set out in
Article 5 of the Treaty. In accordance with the principle
of proportionality, as set out in that Article, this Regulation
does not go beyond what is necessary in order to
achieve those objectives.
(7) Enhanced protection for industrial design not only
promotes the contribution of individual designers to the
sum of Community excellence in the field, but also
encourages innovation and development of new products
and investment in their production.
(8) Consequently a more accessible design-protection
system adapted to the needs of the internal market is
essential for Community industries.
(1) OJ C 29, 31.1.1994, p. 20 and OJ C 248, 29.8.2000, p. 3.
(2) OJ C 67, 1.3.2001, p. 318.
(3) OJ C 110, 2.5.1995 and OJ C 75, 15.3.2000, p. 35. (4) OJ L 289, 28.10.1998, p. 28.
EN Official Journal of the European Communities 5.1.2002L 3/2
(9) The substantive provisions of this Regulation on design
law should be aligned with the respective provisions in
Directive 98/71/EC.
(10) Technological innovation should not be hampered by
granting design protection to features dictated solely by
a technical function. It is understood that this does not
entail that a design must have an aesthetic quality. Likewise,
the interoperability of products of different makes
should not be hindered by extending protection to the
design of mechanical fittings. Consequently, those
features of a design which are excluded from protection
for those reasons should not be taken into consideration
for the purpose of assessing whether other features of
the design fulfil the requirements for protection.
(11) The mechanical fittings of modular products may nevertheless
constitute an important element of the innovative
characteristics of modular products and present a
major marketing asset, and therefore should be eligible
for protection.
(12) Protection should not be extended to those component
parts which are not visible during normal use of a
product, nor to those features of such part which are
not visible when the part is mounted, or which would
not, in themselves, fulfil the requirements as to novelty
and individual character. Therefore, those features of
design which are excluded from protection for these
reasons should not be taken into consideration for the
purpose of assessing whether other features of the
design fulfil the requirements for protection.
(13) Full-scale approximation of the laws of the Member
States on the use of protected designs for the purpose of
permitting the repair of a complex product so as to
restore its original appearance, where the design is
applied to or incorporated in a product which constitutes
a component part of a complex product upon
whose appearance the protected design is dependent,
could not be achieved through Directive 98/71/EC.
Within the framework of the conciliation procedure on
the said Directive, the Commission undertook to review
the consequences of the provisions of that Directive
three years after the deadline for transposition of the
Directive in particular for the industrial sectors which
are most affected. Under these circumstances, it is
appropriate not to confer any protection as a
Community design for a design which is applied to or
incorporated in a product which constitutes a component
part of a complex product upon whose appearance
the design is dependent and which is used for the
purpose of the repair of a complex product so as to
restore its original appearance, until the Council has
decided its policy on this issue on the basis of a
Commission proposal.
(14) The assessment as to whether a design has individual
character should be based on whether the overall
impression produced on an informed user viewing the
design clearly differs from that produced on him by the
existing design corpus, taking into consideration the
nature of the product to which the design is applied or
in which it is incorporated, and in particular the industrial
sector to which it belongs and the degree of
freedom of the designer in developing the design.
(15) A Community design should, as far as possible, serve the
needs of all sectors of industry in the Community.
(16) Some of those sectors produce large numbers of designs
for products frequently having a short market life where
protection without the burden of registration formalities
is an advantage and the duration of protection is of
lesser significance. On the other hand, there are sectors
of industry which value the advantages of registration
for the greater legal certainty it provides and which
require the possibility of a longer term of protection
corresponding to the foreseeable market life of their
products.
(17) This calls for two forms of protection, one being a
short-term unregistered design and the other being a
longer term registered design.
(18) A registered Community design 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. This
registration system should in principle 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.
(19) A Community design should not be upheld unless the
design is new and unless it also possesses an individual
character in comparison with other designs.
(20) It is also necessary to allow the designer or his successor
in title to test the products embodying the design in the
market place before deciding whether the protection
resulting from a registered Community design is desirable.
To this end it is 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.
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(21) The exclusive nature of the right conferred by the registered
Community design is consistent with its greater
legal certainty. It is appropriate that the unregistered
Community design should, however, constitute a right
only to prevent copying. Protection could not therefore
extend to design products which are the result of a
design arrived at independently by a second designer.
This right should also extend to trade in products
embodying infringing designs.
(22) The enforcement of these rights is to be left to national
laws. It is necessary therefore to provide for some basic
uniform sanctions in all Member States. These should
make it possible, irrespective of the jurisdiction under
which enforcement is sought, to stop the infringing acts.
(23) Any third person who can establish that he has in good
faith commenced use even for commercial purposes
within the Community, or has made serious and effective
preparations to that end, of a design included within
the scope of protection of a registered Community
design, which has not been copied from the latter, may
be entitled to a limited exploitation of that design.
(24) It is a fundamental objective of this Regulation 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.
(25) Those sectors of industry producing large numbers of
possibly short-lived designs over short periods of time of
which only some may be eventually commercialised will
find advantage in the unregistered Community design.
Furthermore, there is also a need for these sectors to
have easier recourse to the registered Community
design. Therefore, the option of combining a number of
designs in one multiple application would satisfy that
need. However, the designs contained in a multiple
application may be dealt with independently of each
other for the purposes of enforcement of rights,
licensing, rights in rem, levy of execution, insolvency
proceedings, surrender, renewal, assignment, deferred
publication or declaration of invalidity.
(26) The normal publication following registration of a
Community design could in some cases destroy or jeopardise
the success of a commercial operation involving
the design. The facility of a deferment of publication for
a reasonable period affords a solution in such cases.
(27) 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.
(28) It is therefore necessary to provide safeguards including
a right of appeal to a Board of Appeal, and ultimately to
the Court of Justice. Such a procedure would assist the
development of uniform interpretation of the requirements
governing the validity of Community designs.
(29) It is essential that the rights conferred by a Community
design can be enforced in an efficient manner
throughout the territory of the Community.
(30) The litigation system should avoid as far as possible
`forum shopping'. It is therefore necessary to establish
clear rules of international jurisdiction.
(31) This Regulation does not preclude the application to
designs protected by Community designs of the industrial
property laws or other relevant laws of the Member
States, such as those relating to design protection
acquired by registration or those relating to unregistered
designs, trade marks, patents and utility models, unfair
competition or civil liability.
(32) In the absence of the complete harmonisation of copyright
law, it is important to establish the principle of
cumulation of protection under the Community design
and under copyright law, whilst leaving Member States
free to establish the extent of copyright protection and
the conditions under which such protection is conferred.
(33) The measures necessary for the implementation of this
Regulation should be adopted in accordance with
Council Decision 1999/468/EC of 28 June 1999 laying
down the procedures for the exercise of implementing
powers conferred on the Commission (1
),
HAS ADOPTED THIS REGULATION:
TITLE I
GENERAL PROVISIONS
Article 1
Community design
1. A design which complies with the conditions contained
in this Regulation is hereinafter referred to as a `Community
design'.
(1
) OJ L 184, 17.7.1999, p. 23.
EN Official Journal of the European Communities 5.1.2002L 3/4
2. A design shall be protected:
(a) by an `unregistered Community design', if made available to
the public in the manner provided for in this Regulation;
(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, nor shall its use be prohibited,
save in respect of the whole Community. This principle and its
implications shall apply unless otherwise provided in this
Regulation.
Article 2
Office
The Office for Harmonisation in the Internal Market (Trade
Marks and Designs), hereinafter referred to as `the Office', instituted
by Council Regulation (EC) No 40/94 of 20 December
1993 on the Community trade mark (1), hereinafter referred to
as the `Regulation on the Community trade mark', shall carry
out the tasks entrusted to it by this Regulation.
TITLE II
THE LAW RELATING TO DESIGNS
Section 1
Requirements for protection
Article 3
Definitions
For the purposes of this Regulation:
(a) `design' means the appearance of the whole or a part of a
product resulting from the features of, in particular, the
lines, contours, colours, shape, texture and/or materials of
the product itself and/or its ornamentation;
(b) `product' means any industrial or handicraft item, including
inter alia parts intended to be assembled into a complex
product, packaging, get-up, graphic symbols and typographic
typefaces, but excluding computer programs;
(c) `complex product' means a product which is composed of
multiple components which can be replaced permitting
disassembly and re-assembly of the product.
Article 4
Requirements for protection
1. A design shall be protected by a Community design to
the extent that it is new and has individual character.
2. A design applied to or incorporated in a product which
constitutes a component part of a complex product shall only
be considered to be new and to have individual character:
(a) if the component part, once it has been incorporated into
the complex product, remains visible during normal use of
the latter; and
(b) to the extent that those visible features of the component
part fulfil in themselves the requirements as to novelty and
individual character.
3. `Normal use' within the meaning of paragraph (2)(a) shall
mean use by the end user, excluding maintenance, servicing or
repair work.
Article 5
Novelty
1. A design shall be considered to be new if no identical
design has been made available to the public:
(a) in the case of an unregistered Community design, before
the date on which the design for which protection is
claimed has first been made available to the public;
(b) in the case of a registered Community design, before the
date of filing of the application for registration of the
design for which protection is claimed, or, if priority is
claimed, the date of priority.
2. Designs shall be deemed to be identical if their features
differ only in immaterial details.
Article 6
Individual character
1. A design shall be considered to have individual character
if the overall impression it produces on the informed user
differs from the overall impression produced on such a user by
any design which has been made available to the public:
(a) in the case of an unregistered Community design, before
the date on which the design for which protection is
claimed has first been made available to the public;
(b) in the case of a registered Community design, before the
date of filing the application for registration or, if a priority
is claimed, the date of priority.
2. In assessing individual character, the degree of freedom of
the designer in developing the design shall be taken into
consideration.
(1) OJ L 11, 14.1.1994, p. 1. Regulation as last amended by Regulation
(EC) No 3288/94 (OJ L 349, 31.12.1994, p. 83).
EN Official Journal of the European Communities5.1.2002 L 3/5
Article 7
Disclosure
1. For the purpose of applying Articles 5 and 6, a design
shall be deemed to have been made available to the public if it
has been published following registration or otherwise, or
exhibited, used in trade or otherwise disclosed, before the date
referred to in Articles 5(1)(a) and 6(1)(a) or in Articles 5(1)(b)
and 6(1)(b), as the case may be, except where these events
could not reasonably have become known in the normal
course of business to the circles specialised in the sector
concerned, operating within the Community. The design 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.
2. A disclosure shall not be taken into consideration for the
purpose of applying Articles 5 and 6 and if a design for which
protection is claimed under a registered Community design has
been made available to the public:
(a) by the designer, his successor in title, or a third person as a
result of information provided or action taken by the
designer or his successor in title; and
(b) during the 12-month period preceding the date of filing of
the application or, if a priority is claimed, the date of
priority.
3. Paragraph 2 shall also apply if the design has been made
available to the public as a consequence of an abuse in relation
to the designer or his successor in title.
Article 8
Designs dictated by their technical function and designs of
interconnections
1. A Community design shall not subsist in features of
appearance of a product which are solely dictated by its technical
function.
2. A Community design shall not subsist in features of
appearance of a product which must necessarily be reproduced
in their exact form and dimensions in order to permit the
product in which the design is incorporated or to which it is
applied to be mechanically connected to or placed in, around
or against another product so that either product may perform
its function.
3. Notwithstanding paragraph 2, a Community design shall
under the conditions set out in Articles 5 and 6 subsist in a
design serving the purpose of allowing the multiple assembly
or connection of mutually interchangeable products within a
modular system.
Article 9
Designs contrary to public policy or morality
A Community design shall not subsist in a design which is
contrary to public policy or to accepted principles of morality.
Section 2
Scope and term of protection
Article 10
Scope of protection
1. The scope of the protection conferred by a Community
design shall include any design which does not produce on the
informed user a different overall impression.
2. In assessing the scope of protection, the degree of
freedom of the designer in developing his design shall be taken
into consideration.
Article 11
Commencement and term of protection of the unregistered
Community design
1. A design which meets the requirements under Section 1
shall be protected by an unregistered Community design for a
period of three years as from the date on which the design was
first made available to the public within the Community.
2. For the purpose of paragraph 1, a design shall be deemed
to have been made available to the public within the
Community if it has been published, exhibited, used in trade or
otherwise disclosed in such a way that, in the normal course of
business, these events could reasonably have become known to
the circles specialised in the sector concerned, operating within
the Community. The design shall not, however, 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.
Article 12
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 right holder may have the
term of protection renewed for one or more periods of five
years each, up to a total term of 25 years from the date of
filing.
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Article 13
Renewal
1. Registration of the registered Community design shall be
renewed at the request of the right holder or of any person
expressly authorised by him, provided that the renewal fee has
been paid.
2. The Office shall inform the right holder of the registered
Community design and any person having a right entered in
the register of Community designs, referred to in Article 72,
hereafter referred to as the `register' in respect of the registered
Community design, of the expiry of the registration in good
time before the said expiry. Failure to give such information
shall not involve the responsibility of the Office.
3. The request for renewal shall be submitted and the
renewal fee paid within a period of six months ending on the
last day of the month in which protection ends. Failing this, the
request may be submitted and the fee paid within a further
period of six months from the day referred to in the first
sentence, provided that an additional fee is paid within this
further period.
4. Renewal shall take effect from the day following the date
on which the existing registration expires. The renewal shall be
entered in the register.
Section 3
Right to the Community design
Article 14
Right to the Community design
1. The right to the Community design shall vest in the
designer or his successor in title.
2. If two or more persons have jointly developed a design,
the right to the Community design shall vest in them jointly.
3. However, where a design is developed by an employee in
the execution of his duties or following the instructions given
by his employer, the right to the Community design shall vest
in the employer, unless otherwise agreed or specified under
national law.
Article 15
Claims relating to the entitlement to a Community design
1. If an unregistered Community design is disclosed or
claimed by, or a registered Community design has been applied
for or registered 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 become recognised as the legitimate
holder of the Community design.
2. Where a person is jointly entitled to a Community
design, that person may, in accordance with paragraph 1, claim
to become recognised as joint holder.
3. Legal proceedings under paragraphs 1 or 2 shall be
barred three years after the date of publication of a registered
Community design or the date of disclosure of an unregistered
Community design. This provision shall not apply if the person
who is not entitled to the Community design was acting in bad
faith at the time when such design was applied for or disclosed
or was assigned to him.
4. In the case of a registered Community design, the
following shall be entered in the register:
(a) the mention that legal proceedings under paragraph 1 have
been instituted;
(b) the final decision or any other termination of the proceed-
ings;
(c) any change in the ownership of the registered Community
design resulting from the final decision.
Article 16
Effects of a judgement on entitlement to a registered
Community design
1. Where there is a complete change of ownership of a
registered Community design as a result of legal proceedings
under Article 15(1), licences and other rights shall lapse upon
the entering in the register of the person entitled.
2. If, before the institution of the legal proceedings under
Article 15(1) has been registered, the holder of the 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 the holder of the registered
Community design 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 17
Presumption in favour of the registered holder of the
design
The person in whose name the registered Community design is
registered or, prior to registration, the person in whose name
the application is filed, shall be deemed to be the person
entitled in any proceedings before the Office as well as in any
other proceedings.
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Article 18
Right of the designer to be cited
The designer shall have the right, in the same way as the
applicant for or the holder of a registered Community design,
to be cited as such before the Office and in the register. If the
design is the result of teamwork, the citation of the team may
replace the citation of the individual designers.
Section 4
Effects of the Community design
Article 19
Rights conferred by the Community design
1. A registered Community design shall confer on its holder
the exclusive right to use it and to prevent any third party not
having his consent from using it. The aforementioned use shall
cover, in particular, the making, offering, putting on the
market, importing, exporting or using of a product in which
the design is incorporated or to which it is applied, or stocking
such a product for those purposes.
2. An unregistered Community design shall, however,
confer on its holder the right to prevent the acts referred to in
paragraph 1 only if the contested use results from copying the
protected design.
The contested use shall not be deemed to result from copying
the protected design if it results from an independent work of
creation by a designer who may be reasonably thought not to
be familiar with the design made available to the public by the
holder.
3. Paragraph 2 shall also apply to a registered Community
design subject to deferment of publication as long as the
relevant entries in the register and the file have not been made
available to the public in accordance with Article 50(4).
Article 20
Limitation of the rights conferred by a Community design
1. The rights conferred by a Community design shall not be
exercised in respect of:
(a) acts done privately and for non-commercial purposes;
(b) acts done for experimental purposes;
(c) acts of reproduction for the purpose of making citations or
of teaching, provided that such acts are compatible with
fair 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 be exercised in respect of:
(a) the equipment on ships and aircraft registered in a third
country when these temporarily enter the territory of the
Community;
(b) the importation in the Community of spare parts and
accessories for the purpose of repairing such craft;
(c) the execution of repairs on such craft.
Article 21
Exhaustion of rights
The rights conferred by a Community design shall not extend
to acts relating to a product in which a design included within
the scope of protection of the 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 22
Rights of prior use in respect of a registered Community
design
1. A right of prior use shall exist for any third person who
can establish that before the date of filing of the application, or,
if a priority is claimed, before the date of priority, he has in
good faith commenced use within the Community, or has
made serious and effective preparations to that end, of a design
included within the scope of protection of a registered
Community design, which has not been copied from the latter.
2. The right of prior use shall entitle the third person to
exploit the design for the purposes for which its use had been
effected, or for which serious and effective preparations had
been made, before the filing or priority date of the registered
Community design.
3. The right of prior use shall not extend to granting a
licence to another person to exploit the design.
4. The right of prior use cannot be transferred except, where
the third person is a business, along with that part of the
business in the course of which the act was done or the
preparations were made.
Article 23
Government use
Any provision in the law of a Member State allowing use of
national designs by or for the government may be applied to
Community designs, but only to the extent that the use is
necessary for essential defence or security needs.
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Section 5
Invalidity
Article 24
Declaration of invalidity
1. A registered Community design shall be declared invalid
on application to the Office in accordance with the procedure
in Titles VI and VII or by a Community design court on the
basis of a counterclaim in infringement proceedings.
2. A Community design may be declared invalid even after
the Community design has lapsed or has been surrendered.
3. An unregistered Community design shall be declared
invalid by a Community design court on application to such a
court or on the basis of a counterclaim in infringement
proceedings.
Article 25
Grounds for invalidity
1. A Community design may be declared invalid only in the
following cases:
(a) if the design does not correspond to the definition under
Article 3(a);
(b) if it does not fulfil the requirements of Articles 4 to 9;
(c) if, by virtue of a court decision, the right holder is not
entitled to the Community design under Article 14;
(d) if the Community design is in conflict with a prior design
which has been made available to the public after the date
of filing of the application or, if a priority is claimed, the
date of priority of the Community design, and which is
protected from a date prior to the said date by a registered
Community design or an application for such a design, or
by a registered design right of a Member State, or by an
application for such a right;
(e) if a distinctive sign is used in a subsequent design, and
Community law or the law of the Member State governing
that sign confers on the right holder of the sign the right to
prohibit such use;
(f) if the design constitutes an unauthorised use of a work
protected under the copyright law of a Member State;
(g) if the design constitutes an improper use of any of the
items listed in Article 6ter of the `Paris Convention' for the
Protection of Industrial Property hereafter referred to as the
`Paris Convention', or of badges, emblems and escutcheons
other than those covered by the said Article 6ter and which
are of particular public interest in a Member State.
2. The ground provided for in paragraph (1)(c) may be
invoked solely by the person who is entitled to the Community
design under Article 14.
3. The grounds provided for in paragraph (1)(d), (e) and (f)
may be invoked solely by the applicant for or holder of the
earlier right.
4. The ground provided for in paragraph (1)(g) may be
invoked solely by the person or entity concerned by the use.
5. Paragraphs 3 and 4 shall be without prejudice to the
freedom of Member States to provide that the grounds
provided for in paragraphs 1(d) and (g) may also be invoked by
the appropriate authority of the Member State in question on
its own initiative.
6. A registered Community design which has been declared
invalid pursuant to paragraph (1)(b), (e), (f) or (g) may be
maintained in an amended form, if in that form it complies
with the requirements for protection and the identity of the
design is retained. `Maintenance' in an amended form may
include registration accompanied by a partial disclaimer by the
holder of the registered Community design or entry in the
register of a court decision or a decision by the Office declaring
the partial invalidity of the registered Community design.
Article 26
Consequences of invalidity
1. A Community design shall be deemed not to have had, as
from the outset, the effects specified in this Regulation, to the
extent that it has been declared invalid.
2. Subject to the national provisions relating either to claims
for compensation for damage caused by negligence or lack of
good 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 the 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.
TITLE III
COMMUNITY DESIGNS AS OBJECTS OF PROPERTY
Article 27
Dealing with Community designs as national design rights
1. Unless Articles 28, 29, 30, 31 and 32 provide otherwise,
a Community design as an object of property shall be dealt
with in its entirety, and for the whole area of the Community,
as a national design right of the Member State in which:
(a) the holder has his seat or his domicile on the relevant date;
or
(b) where point (a) does not apply, the holder has an establishment
on the relevant date.
EN Official Journal of the European Communities5.1.2002 L 3/9
2. In the case of a registered Community design, paragraph
1 shall apply according to the entries in the register.
3. In the case of joint holders, if two or more of them fulfil
the condition under paragraph 1, the Member State referred to
in that paragraph 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 seat of the Office is situated.
Article 28
Transfer of the registered Community design
The transfer of a registered Community design shall be subject
to the following provisions:
(a) at the request of one of the parties, a transfer shall be
entered in the register and published;
(b) until such time as the transfer has been entered in the
register, the successor in title may not invoke the rights
arising from the registration of the Community design;
(c) where there are time limits to be observed in dealings with
the Office, the successor in title 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 by virtue of Article 66 require notification
to the holder of the registered Community design
shall be addressed by the Office to the person registered as
holder or his representative, if one has been appointed.
Article 29
Rights in rem on a registered Community design
1. A registered Community design may be given as security
or be the subject of rights in rem.
2. On request of one of the parties, the rights mentioned in
paragraph 1 shall be entered in the register and published.
Article 30
Levy of execution
1. A registered Community design may be levied in execu-
tion.
2. As regards the procedure for levy of execution in respect
of a registered Community design, the courts and authorities of
the Member State determined in accordance with Article 27
shall have exclusive jurisdiction.
3. On request of one of the parties, levy of execution shall
be entered in the register and published.
Article 31
Insolvency proceedings
1. The only insolvency proceedings in which a Community
design may be involved shall be those opened in the Member
State within the territory of which the centre of a debtor's main
interests is situated.
2. In the case of joint proprietorship of a Community
design, paragraph 1 shall apply to the share of the joint
proprietor.
3. Where a Community design is involved in insolvency
proceedings, on request of the competent national authority an
entry to this effect shall be made in the register and published
in the Community Designs Bulletin referred to in Article 73(1).
Article 32
Licensing
1. A Community design may be licensed for the whole or
part of the Community. A licence may be exclusive or non-
exclusive.
2. Without prejudice to any legal proceedings based on the
law of contract, the holder may invoke the rights conferred by
the Community design against a licensee who contravenes any
provision in his licensing contract with regard to its duration,
the form in which the design may be used, the range of
products for which the licence is granted and the quality of
products manufactured by the licensee.
3. Without prejudice to the provisions of the licensing
contract, the licensee may bring proceedings for infringement
of a Community design only if the right holder 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.
4. 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.
5. In the case of a registered Community design, the grant
or transfer of a licence in respect of such right shall, at the
request of one of the parties, be entered in the register and
published.
Article 33
Effects vis--vis third parties
1. The effects vis--vis third parties of the legal acts referred
to in Articles 28, 29, 30 and 32 shall be governed by the law
of the Member State determined in accordance with Article 27.
EN Official Journal of the European Communities 5.1.2002L 3/10
2. However, as regards registered Community designs, legal
acts referred to in Articles 28, 29 and 32 shall only have effect
vis--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--vis third parties who have acquired rights in
the registered Community design after the date of that act but
who knew of the 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 concerning the registered
Community design 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 insolvency enter into force, the effects vis--vis
third parties of insolvency proceedings shall be governed by
the law of the Member State in which such proceedings are
first brought under the national law or the regulations applicable
in this field.
Article 34
The application for a registered Community design as an
object of property
1. An application for a registered Community design as an
object of property shall be dealt with in its entirety, and for the
whole area of the Community, as a national design right of the
Member State determined in accordance with Article 27.
2. Articles 28, 29, 30, 31, 32 and 33 shall apply mutatis
mutandis to applications for registered Community designs.
Where the effect of one of these provisions is conditional upon
an entry in the register, that formality shall be performed upon
registration of the resulting registered Community design.
TITLE IV
APPLICATION FOR A REGISTERED COMMUNITY DESIGN
Section 1
Filing of applications and the conditions which govern them
Article 35
Filing and forwarding of applications
1. An application for a registered Community design shall
be filed, at the option of the applicant:
(a) at the Office; or
(b) at the central industrial property office of a Member State;
or
(c) in the Benelux countries, at the Benelux Design Office.
2. Where the application is filed at the central industrial
property office of a Member State or at the Benelux Design
Office, that office shall take all steps to forward the application
to the Office within two weeks after filing. It may charge the
applicant a fee which shall not exceed the administrative costs
of receiving and forwarding the application.
3. As soon as the Office has received an application which
has been forwarded by a central industrial property office of a
Member State or by the Benelux Design Office, it shall inform
the applicant accordingly, indicating the date of its receipt at
the Office.
4. No less than 10 years after the entry into force of this
Regulation, the Commission shall draw up a report on the
operation of the system of filing applications for registered
Community designs, accompanied by any proposals for revision
that it may deem appropriate.
Article 36
Conditions with which applications must comply
1. An application for a registered Community design shall
contain:
(a) a request for registration;
(b) information identifying the applicant;
(c) a representation of the design suitable for reproduction.
However, if the object of the application is a two-dimensional
design and the application contains a request for
deferment of publication in accordance with Article 50, the
representation of the design may be replaced by a
specimen.
2. The application shall further contain an indication of the
products in which the design is intended to be incorporated or
to which it is intended to be applied.
3. In addition, the application may contain:
(a) a description explaining the representation or the
specimen;
(b) a request for deferment of publication of the registration in
accordance with Article 50;
(c) information identifying the representative if the applicant
has appointed one;
(d) the classification of the products in which the design is
intended to be incorporated or to which it is intended to be
applied according to class;
(e) the citation of the designer or of the team of designers or a
statement under the applicant's responsibility that the
designer or the team of designers has waived the right to be
cited.
4. The application shall be subject to the payment of the
registration fee and the publication fee. Where a request for
deferment under paragraph 3(b) is filed, the publication fee
shall be replaced by the fee for deferment of publication.
EN Official Journal of the European Communities5.1.2002 L 3/11
5. The application shall comply with the conditions laid
down in the implementing regulation.
6. The information contained in the elements mentioned in
paragraph 2 and in paragraph 3(a) and (d) shall not affect the
scope of protection of the design as such.
Article 37
Multiple applications
1. Several designs may be combined in one multiple
application for registered Community designs. Except in cases
of ornamentation, this possibility is subject to the condition
that the products in which the designs are intended to be
incorporated or to which they are intended to be applied all
belong to the same class of the International Classification for
Industrial Designs.
2. Besides the fees referred to in Article 36(4), 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.
4. Each of the designs contained in a multiple application or
registration may be dealt with separately from the others for
the purpose of applying this Regulation. It may in particular,
separately from the others, be enforced, licensed, be the subject
of a right in rem, a levy of execution or insolvency proceedings,
be surrendered, renewed or assigned, be the subject of deferred
publication or be declared invalid. A multiple application or
registration may be divided into separate applications or registrations
only under the conditions set out in the implementing
regulation.
Article 38
Date of filing
1. The date of filing of an application for a registered
Community design shall be the date on which documents
containing the information specified in Article 36(1) 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.
2. By derogation from paragraph 1, the date of filing of an
application filed with the central industrial property office of a
Member State or with the Benelux Design Office and reaching
the Office more than two months after the date on which
documents containing the information specified in Article
36(1) have been filed shall be the date of receipt of such
documents by the Office.
Article 39
Equivalence of Community filing with national filing
An application for a registered Community design which has
been accorded a date of filing shall, in the Member States, be
equivalent to a regular national filing, including where appropriate
the priority claimed for the said application.
Article 40
Classification
For the purpose of this Regulation, use shall be made of the
Annex to the Agreement establishing an International Classification
for Industrial Designs, signed at Locarno on 8 October
1968.
Section 2
Priority
Article 41
Right of priority
1. A person who has duly filed an application for a design
right or for a utility model in or for any State party to the Paris
Convention for the Protection of Industrial Property, or to the
Agreement establishing the World Trade Organisation, or his
successors in title, shall enjoy, for the purpose of filing an
application for a registered Community design in respect of the
same design or utility model, a right of priority of six months
from the date of filing of the first application.
2. Every filing that is equivalent to a regular national filing
under the national law of the State where it was made or under
bilateral or multilateral agreements shall be recognised as
giving rise to a right of priority.
3. `Regular national filing' means any filing that is sufficient
to establish the date on which the application was filed, 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 the 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 rights outstanding, and has not served as a basis for
claiming priority. The previous application may not thereafter
serve as a basis for claiming a right of priority.
5. If the first filing has been made in a State which is not a
party to the Paris Convention, or to the Agreement establishing
the World Trade Organisation, paragraphs 1 to 4 shall apply
only in so far as that State, according to published findings,
grants, on the basis of a filing made at the Office and subject to
conditions equivalent to those laid down in this Regulation, a
right of priority having equivalent effect.
EN Official Journal of the European Communities 5.1.2002L 3/12
Article 42
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
the Office, the Office may require a translation of the previous
application in one of those languages.
Article 43
Effect of priority right
The effect of the right of priority shall be that the date of
priority shall count as the date of the filing of the application
for a registered Community design for the purpose of Articles
5, 6, 7, 22, 25(1)(d) and 50(1).
Article 44
Exhibition priority
1. If an applicant for a registered Community design has
disclosed products in which the design is incorporated, or to
which it is applied, at an official or officially recognised international
exhibition falling within the terms of the Convention
on International Exhibitions 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 disclosure of such products, claim a right of
priority from that date within the meaning of Article 43.
2. An applicant who wishes to claim priority pursuant to
paragraph 1, under the conditions laid down in the implementing
regulation, must file evidence that he has disclosed at
an exhibition the products in or to which the design is incorporated
or applied.
3. An exhibition priority granted in a Member State or in a
third country does not extend the period of priority laid down
in Article 41.
TITLE V
REGISTRATION PROCEDURE
Article 45
Examination as to formal requirements for filing
1. The Office shall examine whether the application
complies with the requirements laid down in Article 36(1) for
the accordance of a date of filing.
2. The Office shall examine whether:
(a) the application complies with the other requirements laid
down in Article 36(2), (3), (4) and (5) and, in the case of a
multiple application, Article 37(1) and (2);
(b) the application meets the formal requirements laid down in
the implementing regulation for the implementation of
Articles 36 and 37;
(c) the requirements of Article 77(2) are satisfied;
(d) the requirements concerning the claim to priority are satisfied,
if a priority is claimed.
3. The conditions for the examination as to the formal
requirements for filing shall be laid down in the implementing
regulation.
Article 46
Remediable deficiencies
1. Where, in carrying out the examination under Article 45,
the Office notes that there are deficiencies which may be
corrected, the Office shall request the applicant to remedy them
within the prescribed period.
2. If the deficiencies concern the requirements referred to in
Article 36(1) and the applicant complies with the Office's
request within the prescribed period, the Office shall accord as
the date of filing the date on which the deficiencies are
remedied. If the deficiencies are not remedied within the
prescribed period, the application shall not be dealt with as an
application for a registered Community design.
3. If the deficiencies concern the requirements, including the
payment of fees, as referred to in Article 45(2)(a), (b) and (c)
and the applicant complies with the Office's request within the
prescribed period, the Office shall accord as the date of filing
the date on which the application was originally filed. If the
deficiencies or the default in payment are not remedied within
the prescribed period, the Office shall refuse the application.
4. If the deficiencies concern the requirements referred to in
Article 45(2)(d), failure to remedy them within the prescribed
period shall result in the loss of the right of priority for the
application.
Article 47
Grounds for non-registrability
1. If the Office, in carrying out the examination pursuant to
Article 45, notices that the design for which protection is
sought:
(a) does not correspond to the definition under Article 3(a); or
(b) is contrary to public policy or to accepted principles of
morality, it shall refuse the application.
2. The application shall not be refused before the applicant
has been allowed the opportunity of withdrawing or amending
the application or of submitting his observations.
EN Official Journal of the European Communities5.1.2002 L 3/13
Article 48
Registration
If the requirements that an application for a registered
Community design must satisfy have been fulfilled and to the
extent that the application has not been refused by virtue of
Article 47, the Office shall register the application in the
Community design Register as a registered Community design.
The registration shall bear the date of filing of the application
referred to in Article 38.
Article 49
Publication
Upon registration, the Office shall publish the registered
Community design in the Community Designs Bulletin as
mentioned in Article 73(1). The contents of the publication
shall be set out in the implementing regulation.
Article 50
Deferment of publication
1. The applicant for a registered Community design may
request, when filing the application, that the publication of the
registered Community design be deferred for a period of 30
months from the date of filing the application or, if a priority is
claimed, from the date of priority.
2. Upon such request, where the conditions set out in
Article 48 are satisfied, 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
74(2), be open to public inspection.
3. The Office shall publish in the Community Designs
Bulletin a mention of the deferment of the publication of the
registered Community design. The mention shall be accompanied
by information identifying the right holder in the registered
Community design, the date of filing the application and
any other particulars prescribed by the implementing regula-
tion.
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 Designs Bulletin,
provided that, within the time limit laid down in the implementing
regulation:
(a) the publication fee and, in the event of a multiple application,
the additional publication fee are paid;
(b) where use has been made of the option pursuant to Article
36(1)(c), the right holder has filed with the Office a representation
of the design.
If the right holder fails to comply with these requirements, the
registered Community design shall be deemed from the outset
not to have had the effects specified in this Regulation.
5. In the case of multiple applications, paragraph 4 need
only be applied to some of the designs included therein.
6. The institution of legal proceedings on the basis of a
registered Community design during the period of deferment of
publication shall be subject to the condition that the information
contained in the register and in the file relating to the
application has been communicated to the person against
whom the action is brought.
TITLE VI
SURRENDER AND INVALIDITY OF THE REGISTERED
COMMUNITY DESIGN
Article 51
Surrender
1. The surrender of a registered Community design shall be
declared to the Office in writing by the right holder. It shall not
have effect until it has been entered in the register.
2. If a Community design which is subject to deferment of
publication is surrendered it shall be deemed from the outset
not to have had the effects specified in this Regulation.
3. A registered Community design may be partially surrendered
provided that its amended form complies with the
requirements for protection and the identity of the design is
retained.
4. Surrender shall be registered only with the agreement of
the proprietor of a right entered in the register. If a licence has
been registered, surrender shall be entered in the register only if
the right holder in the registered Community design proves
that he has informed the licensee of his intention to surrender.
This entry shall be made on expiry of the period prescribed by
the implementing regulation.
5. If an action pursuant to Article 14 relating to the entitlement
to a registered Community design has been brought
before a Community design court, the Office shall not enter the
surrender in the register without the agreement of the claimant.
Article 52
Application for a declaration of invalidity
1. Subject to Article 25(2), (3), (4) and (5), any natural or
legal person, as well as a public authority empowered to do so,
may submit to the Office an application for a declaration of
invalidity of a registered Community design.
2. The application shall be filed in a written reasoned statement.
It shall not be deemed to have been filed until the fee for
an application for a declaration of invalidity has been paid.
3. An application for a declaration of invalidity shall not be
admissible if an application relating to the same subject matter
and cause of action, and involving the same parties, has been
adjudicated on by a Community design court and has acquired
the authority of a final decision.
EN Official Journal of the European Communities 5.1.2002L 3/14
Article 53
Examination of the application
1. If the Office finds that the application for a declaration of
invalidity is admissible, the Office shall examine whether the
grounds for invalidity referred to in Article 25 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 from the other parties or issued by itself.
3. The decision declaring the registered Community design
invalid shall be entered in the register upon becoming final.
Article 54
Participation in the proceedings of the alleged infringer
1. In the event of an application for a declaration of invalidity
of a registered Community design being filed, and as long
as no final decision has been taken by the Office, any third
party who proves that proceedings for infringement of the
same design have been instituted against him may be joined as
a party in the invalidity proceedings on request submitted
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 Community 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 Community design.
2. The request to be joined as a party shall be filed in a
written reasoned statement. It shall not be deemed to have
been filed until the invalidity fee, referred to in Article 52(2),
has been paid. Thereafter the request shall, subject to any
exceptions laid down in the implementing regulation, be
treated as an application for a declaration of invalidity.
TITLE VII
APPEALS
Article 55
Decisions subject to appeal
1. An appeal shall lie from decisions of the examiners, the
Administration of Trade Marks and Designs 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 together with
the final decision, unless the decision allows separate appeal.
Article 56
Persons entitled to appeal and to be parties to appeal
proceedings
Any party to proceedings adversely affected by a decision may
appeal. Any other parties to the proceedings shall be parties to
the appeal proceedings as of right.
Article 57
Time limit and form of appeal
Notice of appeal must be filed in writing at the Office within
two months after the date of notification of the decision
appealed from. The notice shall be deemed to have been filed
only when the fee for appeal 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 58
Interlocutory revision
1. If the department whose decision is contested considers
the appeal to be admissible and well founded, it shall rectify its
decision. This shall not apply where the appellant is opposed
by another party to the proceedings.
2. If the decision is not rectified within one month after
receipt of the statement of grounds, the appeal shall be
remitted to the Board of Appeal without delay and without
comment as to its merits.
Article 59
Examination of appeals
1. If the appeal is admissible, the Board of Appeal shall
examine whether the appeal is to be allowed.
2. In the examination of the appeal, the Board of Appeal
shall invite the parties, as often as necessary, to file observations,
within a period to be fixed by the Board of Appeal, on
communications from the other parties or issued by itself.
Article 60
Decisions in respect of appeals
1. Following the examination as to the merits of the appeal,
the Board of Appeal shall decide on the appeal. The Board of
Appeal may either exercise any power within the competence
of the department which was responsible for the decision
appealed against or remit the case to that department for
further prosecution.
2. If the Board of Appeal remits the case for further prosecution
to the department whose decision was appealed, 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 from the date of expiry of the period referred to in Article
61(5) or, if an action has been brought before the Court of
Justice within that period, from the date of rejection of such
action.
EN Official Journal of the European Communities5.1.2002 L 3/15
Article 61
Actions before the Court of Justice
1. Actions may be brought before the Court of Justice
against decisions of the Boards of Appeal on appeals.
2. The action may be brought on grounds of lack of
competence, infringement of an essential procedural 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 to alter
the contested decision.
4. The action shall be open to any party to proceedings
before the Board of Appeal adversely affected by its decision.
5. The action shall be brought before the Court of Justice
within two months of the date of notification of the decision of
the Board of Appeal.
6. The Office shall be required to take the necessary measures
to comply with the judgment of the Court of Justice.
TITLE VIII
PROCEDURE BEFORE THE OFFICE
Section 1
General provisions
Article 62
Statement of reasons on which decisions are based
Decisions of the Office shall state the reasons on which they
are based. They shall be based only on reasons or evidence on
which the parties concerned have had an opportunity to
present their comments.
Article 63
Examination of the facts by the Office of its own motion
1. In proceedings before it the Office shall examine the facts
of its own motion. However, in proceedings relating to a
declaration of 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.
Article 64
Oral proceedings
1. If the Office considers that oral proceedings would be
expedient, they shall be held either at the instance of the Office
or at the request of any party to the proceedings.
2. Oral proceedings, including delivery of the decision, shall
be public, unless the department before which the proceedings
are taking place decides otherwise in cases where admission of
the public could have serious and unjustified disadvantages, in
particular for a party to the proceedings.
Article 65
Taking of evidence
1. In any proceedings before the Office the means of giving
or obtaining evidence shall include the following:
(a) hearing the parties;
(b) requests for information;
(c) the production of documents and items of evidence;
(d) hearing witnesses;
(e) opinions by experts;
(f) statements in writing, sworn or affirmed or having a similar
effect under the law of the State in which the statement is
drawn up.
2. The relevant department of the Office may commission
one of its members to examine the evidence adduced.
3. If the Office considers it necessary for a party, witness or
expert to give evidence orally, it shall issue a summons to the
person concerned to appear before it.
4. The parties shall be informed of the hearing of a witness
or expert before the Office. They shall have the right to be
present and to put questions to the witness or expert.
Article 66
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 of the
Office.
Article 67
Restitutio in integrum
1. The applicant for or holder of a registered Community
design or any other party to proceedings before the Office
who, in spite of all due care required by the circumstances
having been taken, was unable to observe a time limit vis--vis
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 the year
immediately following the expiry of the unobserved 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 13(3) shall be deducted from the period of one year.
EN Official Journal of the European Communities 5.1.2002L 3/16
3. The application must state the grounds on which it is
based and must set out the facts on which it relies. It shall not
be deemed to be filed until the fee for the re-establishment of
rights has been paid.
4. The department competent to decide on the omitted act
shall decide upon the application.
5. The provisions of this Article shall not be applicable to
the time limits referred to in paragraph 2 and Article 41(1).
6. Where the applicant for or holder of a registered
Community design has his rights re-established, he may not
invoke his rights vis--vis a third party who, in good faith, in
the course of the period between the loss of rights in the
application for or registration of the registered Community
design and publication of the mention of re-establishment of
those rights, has put on the market products in which a design
included within the scope of protection of the registered
Community design is incorporated or to which it is applied.
7. A third party who may avail himself of the provisions of
paragraph 6 may bring third party proceedings against the
decision re-establishing the rights of the applicant for or holder
of the registered Community design within a period of two
months as from the date of publication of the mention of
re-establishment of those rights.
8. Nothing in this Article shall limit the right of a Member
State to grant restitutio in integrum in respect of time limits
provided for in this Regulation and to be complied with
vis--vis the authorities of such State.
Article 68
Reference to general principles
In the absence of procedural provisions in this Regulation, the
implementing regulation, the fees regulation or the rules of
procedure of the Boards of Appeal, the Office shall take into
account the principles of procedural law generally recognised
in the Member States.
Article 69
Termination of financial obligations
1. Rights of the Office to the payment of fees shall be barred
four years from the end of the calendar year in which the fee
fell due.
2. Rights against the Office for the refunding of fees or
sums of money paid in excess of a fee shall be barred after four
years from the end of the calendar year in which the right
arose.
3. The periods laid down in paragraphs 1 and 2 shall be
interrupted, in the case covered by paragraph 1, by a request
for payment of the 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 the right have begun.
In this case the period shall end at the earliest one year after
the judgment has acquired the authority of a final decision.
Section 2
Costs
Article 70
Apportionment of costs
1. The losing party in proceedings for a declaration of invalidity
of a registered Community design or appeal proceedings
shall bear the 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. A 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 the fees and the costs
incurred by the other party as stipulated in paragraphs 1 and 2.
4. Where a case does not proceed to judgment, the costs
shall be at the discretion of the Invalidity Division or Board of
Appeal.
5. Where the parties conclude before the Invalidity Division
or Board of Appeal a settlement of costs differing from that
provided for in paragraphs 1, 2, 3 and 4, the body concerned
shall take note of 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 71
Enforcement of decisions fixing the amount of costs
1. Any final decision of the Office fixing the amount of
costs shall be enforceable.
2. Enforcement shall be governed by the rules of civil procedure
in force in the State in the territory of which it is carried
out. The 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 the Office and to the Court
of Justice.
3. When these formalities have been completed on application
by the party concerned, the latter may proceed to enforcement
in accordance with the national law, by bringing the
matter directly before the competent authority.
EN Official Journal of the European Communities5.1.2002 L 3/17
4. Enforcement may be suspended only by a decision of the
Court of Justice. However, the courts of the Member State
concerned shall have jurisdiction over complaints that enforcement
is being carried out in an irregular manner.
Section 3
Informing the public and the official authorities of the
Member States
Article 72
Register of Community designs
The Office shall keep a register to be known as the register of
Community designs, which shall contain those particulars of
which the 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 50(2)
provides otherwise.
Article 73
Periodical publications
1. This Office shall periodically publish a Community
Designs Bulletin containing entries open to public inspection in
the register as well as other particulars the publication of which
is prescribed by this Regulation or by the implementing regula-
tion.
2. 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, shall be
published in the Official Journal of the Office.
Article 74
Inspection of files
1. The files relating to applications for registered
Community designs which have not yet been published or the
files relating to registered Community designs which are
subject to deferment of publication in accordance with Article
50 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 the 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 the consent of the applicant for or holder
of the registered Community design prior to the publication or
after the surrender of the latter in the case provided for in
paragraph 1.
This shall in particular apply if the interested person proves
that the applicant for or the holder of the registered
Community design has taken steps with a view to invoking
against him the right under the 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 75
Administrative cooperation
Unless otherwise provided in this Regulation or in national
laws, the Office and the courts or authorities of the Member
States shall 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 74.
Article 76
Exchange of publications
1. The Office and the central industrial property offices of
the Member States shall despatch to each other on request and
for their own use one or more copies of their respective
publications free of charge.
2. The Office may conclude agreements relating to the
exchange or supply of publications.
Section 4
Representation
Article 77
General principles of representation
1. Subject to paragraph 2, no person shall be compelled to
be represented before the Office.
2. Without prejudice to the second subparagraph 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
78(1) in all proceedings before the Office established by this
Regulation, other than in filing an application for a registered
Community design; the implementing regulation may permit
other exceptions.
3. Natural or legal persons having their domicile or principal
place of business or a real and effective industrial or
commercial establishment in the Community may be represented
before the Office by one of their employees, who must
file with it a signed authorisation for inclusion in the files, the
details of which are set out in the implementing regulation.
EN Official Journal of the European Communities 5.1.2002L 3/18
An employee of a legal person to which this paragraph applies
may also represent other legal persons which have economic
connections with the first legal person, even if those other legal
persons have neither their domicile nor their principal place of
business nor a real and effective industrial or commercial establishment
within the Community.
Article 78
Professional representation
1. Representation of natural or legal persons in proceedings
before the Office under this Regulation may only be undertaken
by:
(a) any legal practitioner qualified in one of the Member States
and having his place of business within the Community, to
the extent that he is entitled, within the said State, to act as
a representative in industrial property matters; or
(b) any professional representatives whose name has been
entered on the list of professional representatives referred
to in Article 89(1)(b) of the Regulation on the Community
trade mark; or
(c) persons whose names are entered on the special list of
professional representatives for design matters referred to
in paragraph 4.
2. The persons referred to in paragraph 1(c) shall only be
entitled to represent third persons in proceedings on design
matters before the Office.
3. The implementing regulation shall provide whether and
under what conditions representatives must file with the Office
a signed authorisation for insertion on the files.
4. Any natural person may be entered on the special list of
professional representatives in design matters, if he fulfils the
following conditions:
(a) he must be a national of one of the Member States;
(b) he must have his place of business or employment in the
Community;
(c) he must be entitled to represent natural or legal persons in
design matters before the central industrial property office
of a Member State or before the Benelux Design Office.
Where, in that State, the entitlement to represent in design
matters is not conditional upon the requirement of special
professional qualifications, persons applying to be entered
on the list must have habitually acted in design matters
before the central industrial property office of the said State
for at least five years. However, persons whose professional
qualification to represent natural or legal persons in design
matters before the central industrial property office of one
of the Member States is officially recognised in accordance
with the regulations laid by such State shall not be subject
to the condition of having exercised the profession.
5. Entry on the list referred to in paragraph 4 shall be
effected upon request, accompanied by a certificate furnished
by the central industrial property office of the Member State
concerned, which must indicate that the conditions laid down
in the said paragraph are fulfilled.
6. The President of the Office may grant exemption from:
(a) the requirement of paragraph 4(a) in special circumstances;
(b) the requirement of paragraph 4(c), second sentence, if the
applicant furnishes proof that he has acquired the requisite
qualification in another way.
7. The conditions under which a person may be removed
from the list shall be laid down in the implementing regulation.
TITLE IX
JURISDICTION AND PROCEDURE IN LEGAL ACTIONS
RELATING TO COMMUNITY DESIGNS
Section 1
Jurisdiction and enforcement
Article 79
Application of the Convention on Jurisdiction and
Enforcement
1. Unless otherwise specified in this Regulation, the Convention
on Jurisdiction and the Enforcement of Judgements in Civil
and Commercial Matters, signed in Brussels on 27 September
1968 (1), hereinafter referred to as the `Convention on Jurisdiction
and Enforcement', shall apply to proceedings relating to
Community designs and applications for registered Community
designs, as well as to proceedings relating to actions on the
basis of Community designs and national designs enjoying
simultaneous protection.
2. The provisions of the Convention on Jurisdiction and
Enforcement which are rendered applicable by the paragraph 1
shall have effect in respect of any Member State solely in the
text which is in force in respect of that State at any given time.
3. In the event of proceedings in respect of the actions and
claims referred to in Article 85:
(a) Articles 2, 4, 5(1), (3), (4) and (5), 16(4) and 24 of the
Convention on Jurisdiction and Enforcement shall not
apply;
(b) Articles 17 and 18 of that Convention shall apply subject
to the limitations in Article 82(4) of this Regulation;
(c) the provisions of Title II of that Convention which are
applicable to persons domiciled in a Member State shall
also be applicable to persons who do not have a domicile
in any Member State but have an establishment therein.
(1
) OJ L 299, 31.12.1972, p. 32. Convention as amended by the
Conventions on the Accession to that Convention of the States
acceding to the European Communities.
EN Official Journal of the European Communities5.1.2002 L 3/19
4. The provisions of the Convention on Jurisdiction and
Enforcement shall not have effect in respect of any Member
State for which that Convention has not yet entered into force.
Until such entry into force, proceedings referred to in paragraph
1 shall be governed in such a Member State by any
bilateral or multilateral convention governing its relationship
with another Member State concerned, or, if no such convention
exists, by its domestic law on jurisdiction, recognition and
enforcement of decisions.
Section 2
Disputes concerning the infringement and validity of
Community designs
Article 80
Community design courts
1. The Member States shall designate in their territories as
limited a number as possible of national courts and tribunals of
first and second instance (Community design courts) which
shall perform the functions assigned to them by this Regula-
tion.
2. Each Member State shall communicate to the Commission
not later than 6 March 2005 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, names or territorial
jurisdiction of the Community design courts shall be notified
without delay by the Member State concerned to the Commis-
sion.
4. The information referred to in paragraphs 2 and 3 shall
be notified by the Commission to the Member States 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 81 for which the
courts of that State have jurisdiction pursuant to Article 82
shall lie with that court of the State in question which would
have jurisdiction ratione loci and ratione materiae in the case of
proceedings relating to a national design right of that State.
Article 81
Jurisdiction over infringement and validity
The Community design courts shall have exclusive jurisdiction:
(a) for infringement actions and -- if they are permitted under
national law -- actions in respect of threatened infringement
of 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 82
International jurisdiction
1. Subject to the provisions of this Regulation and to any
provisions of the Convention on Jurisdiction and Enforcement
applicable by virtue of Article 79, proceedings in respect of the
actions and claims referred to in Article 81 shall be brought in
the courts of the Member State in which the defendant is
domiciled or, if he is not domiciled in any of the Member
States, in any Member State 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 the Member
States, in any Member State in which he has an establishment.
3. If neither the defendant nor the plaintiff is so domiciled
or has such an establishment, such proceedings shall be
brought in the courts of the Member State where the Office has
its seat.
4. Notwithstanding paragraphs 1, 2 and 3:
(a) Article 17 of the Convention on Jurisdiction and Enforcement
shall apply if the parties agree that a different
Community design court shall have jurisdiction;
(b) Article 18 of that Convention shall apply if the defendant
enters an appearance before a different Community design
court.
5. Proceedings in respect of the actions and claims referred
to in Article 81(a) and (d) may also be brought in the courts of
the Member State in which the act of infringement has been
committed or threatened.
Article 83
Extent of jurisdiction on infringement
1. A Community design court whose jurisdiction is based
on Article 82(1), (2) (3) or (4) shall have jurisdiction in respect
of acts of infringement committed or threatened within the
territory of any of the Member States.
2. A Community design court whose jurisdiction is based
on Article 82(5) shall have jurisdiction only in respect of acts
of infringement committed or threatened within the territory of
the Member State in which that court is situated.
Article 84
Action or counterclaim for a declaration of invalidity of a
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 25.
2. In the cases referred to in Article 25(2), (3), (4) and (5)
the action or the counterclaim may be brought solely by the
person entitled under those provisions.
EN Official Journal of the European Communities 5.1.2002L 3/20
3. If the counterclaim is brought in a legal action to which
the right holder of the Community design is not already a
party, he shall 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 85
Presumption of validity -- defence as to the merits
1. In proceedings in respect of an infringement action or an
action for threatened infringement of a registered Community
design, the Community design court shall treat the Community
design as valid. Validity may be challenged only with a counterclaim
for a declaration of invalidity. However, 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 could be
declared invalid on account of an earlier national design right,
within the meaning of Article 25(1)(d), belonging to him.
2. In proceedings in respect of an infringement action or an
action for threatened infringement of an unregistered
Community design, the Community design court shall treat the
Community design as valid if the right holder produces proof
that the conditions laid down in Article 11 have been met and
indicates what constitutes the individual character of his
Community design. However, the defendant may contest its
validity by way of a plea or with a counterclaim for a declaration
of invalidity.
Article 86
Judgements of invalidity
1. Where in a proceeding before a Community design court
the Community design has been put in issue by way of a
counterclaim for a declaration of invalidity:
(a) if any of the grounds mentioned in Article 25 are found to
prejudice the maintenance of the Community design, the
court shall declare the Community design invalid;
(b) if none of the grounds mentioned in Article 25 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 of 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 the court shall determine. If the application is not made
within the time limit, the proceedings shall continue; the counterclaim
shall be deemed withdrawn. Article 91(3) shall apply.
4. Where a Community design court has given a judgment
which has become final on a counterclaim for a declaration of
invalidity of a registered Community design, a copy of the
judgment shall be sent 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 87
Effects of the judgement on invalidity
When it has become final, a judgment of a Community design
court declaring a Community design invalid shall have in all
the Member States the effects specified in Article 26.
Article 88
Applicable law
1. The Community design courts shall apply the provisions
of this Regulation.
2. On all matters not covered by this Regulation, a
Community design court shall apply its national law, including
its private 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 design
right in the Member State where it is situated.
Article 89
Sanctions in actions for infringement
1. Where in an action for infringement or for threatened
infringement a Community design court finds that the
defendant has infringed or threatened to infringe a Community
design, it shall, unless there are special reasons for not doing
so, order the following measures:
(a) an order prohibiting the defendant from proceeding with
the acts which have infringed or would infringe the
Community design;
EN Official Journal of the European Communities5.1.2002 L 3/21
(b) an order to seize the infringing products;
(c) an order to seize materials and implements predominantly
used in order to manufacture the infringing goods, if their
owner knew the effect for which such use was intended or
if such effect would have been obvious in the circum-
stances;
(d) any order imposing other sanctions appropriate under the
circumstances which are provided by the law of the
Member State in which the acts of infringement or threatened
infringement are committed, including its private
international law.
2. The Community design court shall take such measures in
accordance with its national law as are aimed at ensuring that
the orders referred to in paragraph 1 are complied with.
Article 90
Provisional measures, including protective measures
1. Application may be made to the courts of a Member
State, including Community design courts, for such provisional
measures, including protective measures, in respect of a
Community design as may be available under the law of that
State in respect of national design rights even if, under this
Regulation, a Community design court of another Member
State has jurisdiction as to the substance of the matter.
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 85(2)
shall, however, apply mutatis mutandis.
3. A Community design court whose jurisdiction is based
on Article 82(1), (2), (3) or (4) shall have jurisdiction to grant
provisional measures, including protective measures, which,
subject to any necessary procedure for recognition and enforcement
pursuant to Title III of the Convention on Jurisdiction
and Enforcement, are applicable in the territory of any Member
State. No other court shall have such jurisdiction.
Article 91
Specific rules on related actions
1. A Community design court hearing an action referred to
in Article 81, other than an action for a declaration of noninfringement,
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 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 the 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 92
Jurisdiction of Community design courts of second
instance -- further appeal
1. An appeal to the Community design courts of second
instance shall lie from judgments of the Community design
courts of first instance in respect of proceedings arising from
the actions and claims referred to in Article 81.
2. The conditions under which an appeal may be lodged
with a Community design court of second instance shall 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.
Section 3
Other disputes concerning Community designs
Article 93
Supplementary provisions on the jurisdiction of national
courts other than Community design courts
1. Within the Member State whose courts have jurisdiction
under Article 79(1) or (4), those courts shall have jurisdiction
for actions relating to Community designs other than those
referred to in Article 81 which would have jurisdiction ratione
loci and ratione materiae in the case of actions relating to a
national design right in that State.
2. Actions relating to a Community design, other than those
referred to in Article 81, for which no court has jurisdiction
pursuant to Article 79(1) and (4) and paragraph 1 of this
Article may be heard before the courts of the Member State in
which the Office has its seat.
Article 94
Obligation of the national court
A national court which is dealing with an action relating to a
Community design other than the actions referred to in Article
81 shall treat the design as valid. Articles 85(2) and 90(2) shall,
however, apply mutatis mutandis.
EN Official Journal of the European Communities 5.1.2002L 3/22
TITLE X
EFFECTS ON THE LAWS OF THE MEMBER STATES
Article 95
Parallel actions on the basis of Community designs and
national design rights
1. Where actions for infringement or for threatened
infringement involving the same cause of action and between
the same parties are brought before the courts of different
Member States, one seized on the basis of a Community design
and the other seized on the basis of a national 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 a final judgment on
the merits has been given on the same cause of action and
between the same parties on the basis of a design right
providing simultaneous protection.
3. The court hearing an action for infringement or for
threatened infringement on the basis of a national design right
shall reject the action if a final judgment on the merits has
been given on the same cause of action and between the same
parties on the basis of a Community design providing simultaneous
protection.
4. Paragraphs 1, 2 and 3 shall not apply in respect of
provisional measures, including protective measures.
Article 96
Relationship to other forms of protection under national
law
1. The provisions of this Regulation shall be without prejudice
to any provisions of Community law or of the law of the
Member States concerned relating to unregistered designs, trade
marks or other distinctive signs, patents and utility models,
typefaces, civil liability and unfair competition.
2. A design protected by a Community design shall also be
eligible for protection under the law of copyright of Member
States as from the date on which the design was created or
fixed in any form. The extent to which, and the conditions
under which, such a protection is conferred, including the level
of originality required, shall be determined by each Member
State.
TITLE XI
SUPPLEMENTARY PROVISIONS CONCERNING THE OFFICE
Section 1
General provisions
Article 97
General provision
Unless otherwise provided in this Title, Title XII of the Regulation
on the Community trade mark shall apply to the Office
with regard to its tasks under this Regulation.
Article 98
Language of proceedings
1. The application for a registered Community design shall
be filed in one of the official languages of the Community.
2. The applicant must indicate a second language which
shall be a language of the Office the use of which he accepts as
a possible language of proceedings before the Office.
If the application was filed in a language which is not one of
the languages of the Office, the Office shall arrange to have the
application translated into the language indicated by the appli-
cant.
3. Where the applicant for a registered Community design is
the sole party to proceedings before the Office, the language of
proceedings shall be the language used for filing the application.
If the application was made in a language other then the
languages of the Office, the Office may send written communications
to the applicant in the second language indicated by the
applicant in his application.
4. In the case of invalidity proceedings, the language of
proceedings shall be the language used for filing the application
for a registered Community design if this is one of the
languages of the Office. If the application was made in a
language other than the languages of the Office, the language
of proceedings shall be the second language indicated in the
application.
The application for a declaration of invalidity shall be filed in
the language of proceedings.
Where the language of proceedings is not the language used for
filing the application for a registered Community design, the
right holder of the Community design may file observations in
the language of filing. The Office shall arrange to have those
observations translated into the language of proceedings.
The implementing regulation may provide that the translation
expenses to be borne by the Office may not, subject to a
derogation granted by the Office where justified by the
complexity of the case, exceed an amount to be fixed for each
category of proceedings on the basis of the average size of
statements of case received by the Office. Expenditure in excess
of this amount may be allocated to the losing party in accordance
with Article 70.
5. Parties to invalidity proceedings may agree that a
different official language of the Community is to be the
language of the proceedings.
EN Official Journal of the European Communities5.1.2002 L 3/23
Article 99
Publication and register
1. All information the publication of which is prescribed by
this Regulation or the implementing regulation shall be
published in all the official languages of the Community.
2. All entries in the Register of Community designs shall be
made in all the official languages of the Community.
3. In cases of doubt, the text in the language of the Office in
which the application for a registered Community design was
filed shall be authentic. If the application was filed in an official
language of the Community other than one of the languages of
the Office, the text in the second language indicated by the
applicant shall be authentic.
Article 100
Supplementary powers of the President
In addition to the functions and powers conferred on the
President of the Office by Article 119 of the Regulation on the
Community trade mark, the President may place before the
Commission any proposal to amend this Regulation, the implementing
regulation, the fees regulation and any other rule to
the extent that they apply to registered Community designs,
after consulting the Administrative Board and, in the case of
the fees regulation, the Budget Committee.
Article 101
Supplementary powers of the Administrative Board
In addition to the powers conferred on it by Article 121 et seq
of the Regulation on the Community trade mark or by other
provisions of this Regulation, the Administrative Board;
(a) shall set the date for the first filing of applications for
registered Community designs pursuant to Article 111(2);
(b) shall be consulted before adoption of the guidelines for
examination as to formal requirements, examination as to
grounds for refusal of registration and invalidity proceedings
in the Office and in the other cases provided for in this
Regulation.
Section 2
Procedures
Article 102
Competence
For taking decisions in connection with the procedures laid
down in this Regulation the following shall be competent:
(a) examiners;
(b) the Administration of Trade Marks and Designs and Legal
Division;
(c) Invalidity Divisions;
(d) Boards of Appeal.
Article 103
Examiners
An examiner shall be responsible for taking decisions on behalf
of the Office in relation to an application for a registered
Community design.
Article 104
The Administration of Trade Marks and Designs and Legal
Division
1. The Administration of Trade Marks and Legal Division
provided for by Article 128 of the Regulation on the
Community trade mark shall become the Administration of
Trade Marks and Designs and Legal Division.
2. In addition to the powers conferred upon it by the Regulation
on the Community trade mark, it shall be responsible for
taking those decisions required by this Regulation which do
not fall within the competence of an examiner or an Invalidity
Division. It shall in particular be responsible for decisions in
respect of entries in the register.
Article 105
Invalidity Divisions
1. An Invalidity Division shall be responsible for taking
decisions in relation to applications for declarations of invalidity
of registered Community designs.
2. An Invalidity Division shall consist of three members. At
least one of the members must be legally qualified.
Article 106
Boards of Appeal
In addition to the powers conferred upon it by Article 131 of
the Regulation on the Community trade mark, the Boards of
Appeal instituted by that Regulation shall be responsible for
deciding on appeals from decisions of the examiners, the Invalidity
Divisions and from the decisions of the Administration of
Trade Marks and Designs and Legal Division as regards their
decisions concerning Community designs.
TITLE XII
FINAL PROVISIONS
Article 107
Implementing regulation
1. The rules implementing this Regulation shall be adopted
in an implementing regulation.
EN Official Journal of the European Communities 5.1.2002L 3/24
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 the implementing regulation and in
a fees regulation, in the cases listed below:
(a) late payment of the registration fee;
(b) late payment of the publication fee;
(c) late payment of the fee for deferment of publication;
(d) late payment of additional fees for multiple applications;
(e) issue of a copy of the certificate of registration;
(f) registration of the transfer of a registered Community
design;
(g) registration of a licence or another right in respect of a
registered Community design;
(h) cancellation of the registration of a licence or another
right;
(i) issue of an extract from the register;
(j) inspection of the files;
(k) issue of copies of file documents;
(l) communication of information in a file;
(m) review of the determination of the procedural costs to be
refunded;
(n) issue of certified copies of the application.
3. The implementing regulation and the fees regulation shall
be adopted and amended in accordance with the procedure laid
down in Article 109(2).
Article 108
Rules of procedure of the Boards of Appeal
The rules of procedure of the Boards of Appeal shall apply to
appeals heard by those Boards under this Regulation, without
prejudice to any necessary adjustment or additional provision,
adopted in accordance with the procedure laid down in Article
109(2).
Article 109
Committee
1. The Commission shall be assisted by a Committee.
2. Where reference is made to this paragraph, Articles 5 and
7 of Decision 1999/468/EC shall apply.
The period laid down in Article 5(6) of Decision 1999/468/EC
shall be set at three months.
3. The Committee shall adopt its rules of procedure
Article 110
Transitional provision
1. Until such time as amendments to this Regulation enter
into force on a proposal from the Commission on this subject,
protection as a Community design shall not exist for a design
which constitutes a component part of a complex product used
within the meaning of Article 19(1) for the purpose of the
repair of that complex product so as to restore its original
appearance.
2. The proposal from the Commission referred to in paragraph
1 shall be submitted together with, and take into consideration,
any changes which the Commission shall propose on
the same subject pursuant to Article 18 of Directive 98/71/EC.
Article 111
Entry into force
1. This Regulation shall enter into force on the 60th day
following its publication in the Official Journal of the European
Communities.
2. Applications for registered Community designs may be
filed at the Office from the date fixed by the Administrative
Board on the recommendation of the President of the Office.
3. Applications for registered Community designs filed
within three months before the date referred to in paragraph 2
shall be deemed to have been filed on that date.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 12 December 2001.
For the Council
The President
M. AELVOET