{"id":10467,"date":"2020-06-09T10:24:44","date_gmt":"2020-06-09T08:24:44","guid":{"rendered":"https:\/\/blogip.garrigues.com\/?p=10467"},"modified":"2020-06-09T12:29:41","modified_gmt":"2020-06-09T10:29:41","slug":"squeezamals-case","status":"publish","type":"post","link":"https:\/\/blogip.garrigues.com\/en\/designs\/squeezamals-case","title":{"rendered":"‘Squeezamals’ case: At long last the CJEU will have to interpret the meaning of ‘disclosure’ of an unregistered design\u00a0"},"content":{"rendered":"

The CJEU is due to answer a long-standing debate in connection with unregistered designs: What happens when the disclosure occurs outside the European Union? Does this prevent protection of the design because it lacks novelty? <\/strong><\/p>\n

The protection of unregistered Community designs (UCD) in the European Union is a very useful industrial property right which is often overlooked by the owners or designers themselves. UCDs must meet the same requirements as registered Community designs, namely novelty and individual character, to receive protection. But, as their actual name indicates, the protection of UCDs does not occur by registration, but rather automatically (and free of charge) by making the design available to the public, whereby it becomes known to the circles specialized in the sector concerned.<\/p>\n

Consequently, when a design is considered to have been made \u201cavailable to the public\u201d is crucial. Doubts arise due to the apparent contradictions in the Community Design Regulation<\/a> (CDR). On the one hand, Article 11(1) CDR states that the protection of UCDs starts \u201cfrom the date on which the design was first made available to the public within the Community<\/strong>\u201d, that is, within the EU. On the other hand, the protection of UCDs requires worldwide novelty, in that any disclosure, in any country, breaks the novelty of the design and prevents its protection, unless the design could not reasonably have become known in the normal course of business to the circles specialized in the sector concerned \u201coperating within the Community<\/strong>\u201d.<\/p>\n

So what happens if I disclose a design outside the EU? Is it automatically barred from the protection afforded to UCDs because the required novelty has been broken? Surprisingly, up until now, the CJEU had not been asked for its opinion on the matter. However, in September 2019, the Intellectual Property Enterprise Court <\/em>(IPEC, a British court specializing in intellectual property), submitted two questions for preliminary rulings<\/a> on the matter in connection with a conflict between Beverley Hills Teddy Bear Company and PMS International Group due to infringement of the UCD Squeezamals<\/em>, a famous range of animal-like toys.<\/p>\n

\"\"The Squeezamals<\/em> designs were first shown to the public for the first time in October 2017 at the Mega Show<\/em>, an international trade fair in Hong Kong. However, they were not officially exhibited in the EU until January 2018, at the Nuremberg Toy Fair. That is the question: How should the disclosure in Hong Kong be interpreted? Does it trigger protection of these designs as UCDs? Does it break the novelty and prevent their protection as UCDs? The questions that were referred to the CJEU can be summarized as follows:<\/p>\n