Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs

CHAPTER I

APPLICATION PROCEDURE

Article 1

Content of the application

The application for a registered  EU design shall contain:

(a) a request for registration of the design as a registered  EU design;

(b) the name, address and nationality of the applicant and the State in which the applicant is domiciled or in which it has its seat or establishment. Names of natural persons shall take the form of the family name and the given name(s). Names of legal entities shall be indicated by their official designation, which may be abbreviated in a customary manner; furthermore, the State whose law governs such entities shall be indicated. The telephone numbers as well as fax numbers and details of other data-communications links, such as electronic mail, may be given. Only one address shall, in principle, be indicated for each applicant; where several addresses are indicated, only the address mentioned first shall be taken into account, except where the applicant designates one of the addresses as an address for service. If the Office has given the applicant an identification number, it shall be sufficient to mention that number together with the name of the applicant;

(c) a representation of the design in accordance with Article 4;

(d) an indication, in accordance with Article 3(3), of the products in which the design is intended to be incorporated or to which it is intended to be applied;

(e) if the applicant has appointed a representative, the name of that representative and the address of his/her place of business in accordance with point (b); if the representative has more than one business address or if there are two or more representatives with different business addresses, the application shall indicate which address shall be used as an address for service; where no such indication is made, only the first-mentioned address shall be taken into account as an address for service. If there is more than one applicant, the application may indicate the appointment of one applicant or representative as common representative. If an appointed representative has been given an identification number by the Office, it shall be sufficient to mention that number together with the name of the representative;

(f) if applicable, a declaration that priority of a previous application is claimed pursuant to Article 42 of Regulation (EC) No 6/2002, stating the date on which the previous application was filed and the country in which or for which it was filed;

(g) if applicable, a declaration that exhibition priority is claimed pursuant to Article 44 of Regulation (EC) No 6/2002, stating the name of the exhibition and the date of the first disclosure of the products in which the design is incorporated or to which it is applied;

(h) a specification of the language in which the application is filed, and of the second language pursuant to Article 98(2) of Regulation (EC) No 6/2002;

(i) the signature of the applicant or his/her representative in accordance with Article 65.

The application may contain:

(a) a single description per design not exceeding 100 words explaining the representation of the design; the description must relate only to those features which appear in the reproductions of the design; it shall not contain statements as to the purported novelty, the individual character of the design, or its technical value;

(b) a request for deferment of publication of registration in accordance with Article 50(1) of Regulation (EC) No 6/2002;

(c) an indication of the ‘Locarno classification’ of the products contained in the application, that is to say, of the class or classes and the subclass or subclasses to which they belong in accordance with the Annex to the Agreement establishing an international classification for industrial designs, signed at Locarno on 8 October 1968 (hereinafter ‘the Locarno Agreement’), referred to in Article 3 and subject to Article 2(2);

(d) the citation of the designer or of the team of designers or a statement signed by the applicant to the effect that the designer or team of designers has waived the right to be cited under Article 36(3)(e) of Regulation (EC) No 6/2002.

Article 2

Multiple application

Article 3

Classification and indication of products

Article 4

Representation of the design

The representation of the design shall consist in a graphic or photographic reproduction of the design, either in black and white or in colour. It shall meet the following requirements:

(a) save where the application is filed by electronic means pursuant to Article 67, the representation must be filed on separate sheets of paper or reproduced on the page provided for that purpose in the form made available by the Office pursuant to Article 68;

(b) in the case of separate sheets of paper, the design shall be reproduced on opaque white paper and either pasted or printed directly on it. Only one copy shall be filed and the sheets of paper shall not be folded or stapled;

(c) the size of the separate sheet shall be DIN A4 size (29,7 cm × 21 cm) and the space used for the reproduction shall be no larger than 26,2 cm × 17 cm. A margin of at least 2,5 cm shall be left on the left-hand side; at the top of each sheet of paper the number of views shall be indicated pursuant to paragraph 2 and, in the case of a multiple application, the consecutive number of the design; no explanatory text, wording or symbols, other than the indication ‘top’ or the name or address of the applicant, may be displayed thereon;

(d) where the application is filed by electronic means, the graphic or photographic reproduction of the designs shall be in a data format determined by  the Executive Director of the Office; the manner of identifying the different designs contained in a multiple application, or the different views, shall be determined by  the Executive Director of the Office;

(e) the design shall be reproduced on a neutral background and shall not be retouched with ink or correcting fluid. It shall be of a quality permitting all the details of the matter for which protection is sought to be clearly distinguished and permitting it to be reduced or enlarged to a size no greater than 8 cm by 16 cm per view for entry in the Register of  EU designs provided for in Article 72 of Regulation (EC) No 6/2002, hereinafter ‘the Register’, and for direct publishing in the EU designs Bulletin referred to in Article 73 of that Regulation.

In cases where more than seven views are provided, the Office may disregard for registration and publication any of the extra views. The Office shall take the views in the consecutive order in which the views are numbered by the applicant.

The size limits set out in paragraph 1(c) shall apply.

Article 8

Claiming priority

The applicant shall submit to the Office the indications and evidence referred to in paragraph 1 within three months of receipt of the declaration of priority.

Article 9

Exhibition priority

That certificate shall declare that the design was incorporated in or applied to the product and disclosed at the exhibition, and shall state the opening date of the exhibition and, where the first disclosure of the product did not coincide with the opening date of the exhibition, the date of such first disclosure. The certificate shall be accompanied by an identification of the actual disclosure of the product, duly certified by that authority.

Article 11

Examination of grounds for non-registrability

Article 11a

Examination of grounds for refusal

The time limit specified in paragraph 2 of this Article shall apply mutatis mutandis.

Where, pursuant to Article 12(2) of the Geneva act, the holder does not submits observations that would satisfy the Office within the specified time limit, the Office shall confirm the decision refusing protection for the international registration. That decision is subject to appeal in accordance with Title VII of Regulation (EC) No 6/2002.

Article 12

Withdrawal or correction of the application

An application for the correction of the application pursuant to paragraph 2 shall contain:

(a) the file number of the application;

(b) the name and the address of the applicant in accordance with Article 1(1)(b);

(c) where the applicant has appointed a representative, the name and the business address of the representative in accordance with Article 1(1)(e);

(d) the indication of the element of the application to be corrected and that element in its corrected version.

CHAPTER II

REGISTRATION PROCEDURE

Article 14

Publication of the registration

Subject to paragraph 3, the publication of the registration shall contain:

(a) the name and address of the holder of the  EU design (hereinafter ‘the holder’);

(b) where applicable, the name and business address of the representative appointed by the holder other than a representative falling within the first subparagraph of Article 77(3) of Regulation (EC) No 6/2002; if more than one representative has the same business address, only the name and business address of the first-named representative shall be published, the name being followed by the words ‘et al’; if there are two or more representatives with different business addresses, only the address for service determined pursuant to Article 1(1)(e) of this Regulation shall be published; where an association of representatives is appointed pursuant to Article 62(9) only the name and business address of the association shall be published;

(c) the representation of the design pursuant to Article 4; where the representation of the design is in colour, the publication shall be in colour;

(d) where applicable, an indication that a description has been filed pursuant to Article 1(2)(a);

(e) an indication of the products in which the design is intended to be incorporated or to which it is intended to be applied, preceded by the number of the relevant classes and subclasses of the Locarno classification, and grouped accordingly;

(f) where applicable, the name of the designer or the team of designers;

(g) the date of filing and the file number and, in the case of a multiple application, the file number of each design;

(h) where applicable, particulars of the claim of priority pursuant to Article 42 of Regulation (EC) No 6/2002;

(i) where applicable, particulars of the claim of exhibition priority pursuant to Article 44 of Regulation (EC) No 6/2002;

(j) the date and the registration number and the date of the publication of the registration;

(k) the language in which the application was filed and the second language indicated by the applicant pursuant to Article 98(2) of Regulation (EC) No 6/2002.

Article 16

Publication after the period of deferment

Where the holder has complied with the requirements laid down in Article 50 of Regulation (EC) No 6/2002, the Office shall, at the expiry of the period for deferment or in the case of a request for earlier publication, as soon as technically possible:

(a) publish the registered EU design in the European Union Designs Bulletin, with the indications set out in Article 14(2), together with an indication of the fact that the application contained a request for deferment of publication pursuant to Article 50 of Regulation (EC) No 6/2002;

(b) make available for public inspection any file relating to the design;

(c) open to public inspection all the entries in the Register, including any entries withheld from inspection pursuant to Article 74(5) of Regulation (EC) No 6/2002.

Article 17

Certificate of registration

Article 18

Maintenance of the design in an amended form

Article 19

Change of the name or address of the holder or of his/her registered representative

An application for a change of the name or address of the holder shall contain:

(a) the registration number of the design;

(b) the name and the address of the holder as recorded in the Register. If the holder has been given an identification number by the Office, it shall be sufficient to indicate that number together with the name of the holder;

(c) the indication of the name and address of the holder, as changed, in accordance with Article 1(1)(b);

(d) where the holder has appointed a representative, the name and business address of the representative, in accordance with Article 1(1)(e).

If the deficiency is not remedied within the time limits specified by the Office, the Office shall reject the application.

Article 20

Correction of mistakes and errors in the Register and in the publication of the registration

Where the registration of a design or the publication of the registration contains a mistake or error attributable to the Office, the Office shall correct the error or mistake of its own motion or at the request of the holder.

Where such a request is made by the holder, Article 19 shall apply mutatis mutandis. The request shall not be subject to payment of a fee.

The Office shall publish the corrections made pursuant to this Article.

CHAPTER IV

TRANSFER, LICENCES AND OTHER RIGHTS, CHANGES

Article 23

Transfer

An application for registration of a transfer pursuant to Article 28 of Regulation (EC) No 6/2002 shall contain:

(a) the registration number of the  EU design;

(b) particulars of the new holder in accordance with Article 1(1)(b);

(c) where not all of the designs covered by a multiple registration are included in the transfer, particulars of the registered designs to which the transfer relates;

(d) documents duly establishing the transfer.

The following shall constitute sufficient proof of transfer under paragraph 1(d):

(a) the application for registration of the transfer is signed by the registered holder or his/her representative and by the successor in title or his/her representative; or

(b) the application, if submitted by the successor in title, is accompanied by a declaration, signed by the registered holder or his/her representative, that he/she agrees to the registration of the successor in title; or

(c) the application is accompanied by a completed transfer form or document, signed by the registered holder or his/her representative and by the successor in title or his/her representative.

If the deficiencies are not remedied within the time limit specified by the Office, it shall reject the application for registration of the transfer.

Article 24

Registration of licences and other rights

In the case of a multiple registration, each registered  EU design may, separately from the others, be licensed, the subject of a right in rem, levy of execution or insolvency proceedings.

If the deficiencies are not remedied within a time limit specified by the Office, it shall reject the application for registration.

Article 25

Special provisions for the registration of a licence

Article 26

Cancellation or modification of the registration of licences and other rights

The application shall contain:

(a) the registration number of the registered  EU design, or in the case of a multiple registration, the number of each design; and

(b) particulars of the right whose registration is to be cancelled.

If the fee is not paid or is not paid in full, the Office shall notify the applicant accordingly. A request from a competent national authority for cancellation of an entry where a registered  EU design is involved in insolvency proceedings shall not be subject to payment of a fee.

CHAPTER V

SURRENDER AND INVALIDITY

Article 27

Surrender

A declaration of surrender pursuant to Article 51 of Regulation (EC) No 6/2002 shall contain:

(a) the registration number of the registered  EU design;

(b) the name and address of the holder in accordance with Article 1(1)(b);

(c) where a representative has been appointed, the name and business address of the representative in accordance with Article 1(1)(e);

(d) where surrender is declared only for some of the designs contained in a multiple registration, an indication of the designs for which the surrender is declared or the designs which are to remain registered;

(e) where, pursuant to Article 51(3) of Regulation (EC) No 6/2002, the registered  EU design is partially surrendered, a representation of the amended design in accordance with Article 4 of this Regulation.

Where a licence has been registered, surrender of the design shall be registered three months after the date on which the holder satisfies the Office that he/she has informed the licensee of his/her intention to surrender it. If the holder proves to the Office before the expiry of that period that the licensee has given his/her consent, the surrender shall be registered forthwith.

Article 28

Application for a declaration of invalidity

An application to the Office for a declaration of invalidity pursuant to Article 52 of Regulation (EC) No 6/2002 shall contain:

(a) as concerns the registered  EU design for which the declaration of invalidity is sought: (i) its registration number; (ii) the name and address of its holder;

(b) as regards the grounds on which the application is based: (i) a statement of the grounds on which the application for a declaration of invalidity is based; (ii) additionally, in the case of an application pursuant to Article 25(1)(d) of Regulation (EC) No 6/2002, the representation and particulars identifying the prior design on which the application for a declaration of invalidity is based and showing that the applicant is entitled to invoke the earlier design as a ground for invalidity pursuant to Article 25(3) of that Regulation; (iii) additionally, in the case of an application pursuant to Article 25(1)(e) or (f) of Regulation (EC) No 6/2002, the representation and particulars identifying the distinctive sign or the work protected by copyright on which the application for a declaration of invalidity is based and particulars showing that the applicant is the holder of the earlier right pursuant to Article 25(3) of that Regulation; (iv) additionally, in the case of an application pursuant to Article 25(1)(g) of the Regulation (EC) No 6/2002, the representation and particulars of the relevant item as referred to in that Article and particulars showing that the application is filed by the person or entity concerned by the improper use pursuant to Article 25(4) of that Regulation; (v) where the ground for invalidity is that the registered  EU design does not fulfil the requirements set out in Article 5 or 6 of Regulation (EC) No 6/2002, the indication and the reproduction of the prior designs that could form an obstacle to the novelty or individual character of the registered  EU design, as well as documents proving the existence of those earlier designs; (vi) an indication of the facts, evidence and arguments submitted in support of those grounds;