Evidence Evaluation Relating to the Public Disclosure of the Community Design on the Internet

Magdalena Kropiwnicka

doi:10.17951/sil.2021.30.4.353-372

Abstract

<p>The issue of public disclosure of the design is regulated in Article 7 of Council Regulation (EC) no. 6/2002 of 12 December 2001 on Community designs. Pursuant to this provision, 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, except cases where these events could not reasonably have become known in the normal course of business to the circles specialized in the sector concerned, operating within the Community. The design is made available to the public in a situation where these events could be known in the course of normal professional activity in an environment specialized in a given sector, operating within the Community. The list of methods of public disclosure contained in Article 7 of Council Regulation (EC) no. 6/2002 is not a closed catalog. Disclosure of the earlier design on the Internet causes difficulties in assessing whether it meets the conditions required for public access, i.e. whether the design could reasonably have become known in the normal course of business to the circles specialized in the sector concerned. Moreover, the disclosure of the design on the Internet generates problems of evidence related to proving the precise date of its disclosure to the public. The article analyzes the jurisprudence of the European Union Intellectual Property Office (EUIPO) and European jurisprudence in recent years. In particular, attention was paid to the issues of evidence necessary to recognize that the Community design was made available on the Internet. The article concerns a topic that is current both among representatives of the doctrine and in jurisprudence (Polish and European). It has theoretical and practical significance, because the issue of evidence submitted by the parties on the fact that an industrial design is made available to the public is very often a problem at the stage of court proceedings.</p>

Highlights

The issue of public disclosure of a Community design is regulated in Article 7 of Council Regulation (EC) no. 6/2002 of 12 December 2001 on Community designs.[1]
The design is made available to the public in a situation where these events could be known in the course of normal professional activity in an environment specialized in a given sector, operating within the Community
Disclosure of the earlier design on the Internet causes difficulties in assessing whether it meets the conditions required for public access, i.e. whether the design could reasonably have become known in the normal course of business to the circles specialized in the sector concerned

Summary

INTRODUCTION

The issue of public disclosure of a Community design is regulated in Article 7 of Council Regulation (EC) no. 6/2002 of 12 December 2001 on Community designs.[1]. To determine the relevant date for the disclosure of the design on the Internet, the EUIPO Guidelines[11] recommend using the website archiving services instead of search services.[12] In the situation that the date of the upload of a file to the platform is not available, the relevant date could be proven by showing the date of downloading a file by a user.[13] The display of the design at international fairs and exhibitions anywhere in the world is sufficient for it to be considered that the design may have become sufficiently known in the ordinary course of business to the circles specialized in a given industry operating in the Community.

13 Common Comunication

30 Common Comunication

Literature