Home News Unregistered design: draft of law

Unregistered design: draft of law

May 27, 2022

On 20 October , 2021, the Preliminary Draft Law amending Law 17/2001, of 7 December, on Trademarks, Law 20/2003, of 7 July, on the Legal Protection of Industrial Design and Law 24/2015, of 24 July, on patents, was published.

The preliminary draft was carried out to address a joint reform of the main intellectual property laws, by means of a single legal text.

As a result, it affects patents, trademarks and industrial designs, so that the holders of these rights and their actors can enjoy greater legal certainty. Likewise, certain aspects that were confusing in the previous regulations are clarified.

Focusing this communication on design regulations, it should be pointed out that the proposed legislative amendment responds to the current needs of a dynamic and increasingly virtual market which, in turn, requires a procedure that reflects these particularities by means of faster and simpler formalities

Consequently, if the aforementioned preliminary draft is finally passed, it will correct confusing regulatory aspects and reconcile the applicable regulation with the international context.

Leaving aside the aforementioned preliminary draft and emphasizing that unregistered designs are governed by European legislation on community design, it should be noted that the legislation allows protection to be obtained in this way for a period of three years once it has been made accessible to the public, without the need for formal registration with the competent intellectual property office.

However, the protection obtained is weaker, since it only protects the owner against copies of his design (not against independent creations) and because it lasts for three years compared to the maximum of twenty-five years of the registered design.

Likewise, it is determined that the express requirement for an unregistered design to be born is that it has been made public, i.e., that it has been disclosed, published or marketed and that the same disclosure of the design itself has been carried out in a rigorous and precise manner.

In addition, it is determined that the drawing or model must at least be known, to the specialised circles inthe sector concerned operatingin the EU, and the date of disclosure must be certain.

By way of example, disclosure could be demonstrated by a presentation at an international exhibition, a printed publication, by acts of mass publicity, a publication in the bulletin of a national intellectual property office, or in other electronic means, with the date of first disclosure being mandatory.

At PONTI, we can certify the content or disclosure, applicable both in the fieldof unregistered designs, and in other areas of intellectual property.

The certification act captures the content of a design, file or communication carried out by electronic means, making it easier for its owner to obtain reliable proof of date of creation and/or first disclosure, which will be necessary to be able to defend against copies or imitations by competitors.

Article by Xavier Badia.

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